Bryan S. Peeples† | 5 Regent J. Glob. Just. & Pub. Pol. 25
INTRODUCTION
“Jihad needs very many things. Firstly it needs money. Much is
dependent on money today for jihad.”
– Omar Abu al-Chechen, Syrian Terrorist Leader1
The war against international terrorism is waged on many fronts. It is waged with conventional military campaigns in open combat, and by Special Operations Forces in the dark of night. It is fought by intelligence services and law enforcement agencies. It is also fought in the courtroom. This includes both criminal prosecutions of terrorists and those who support them, and increasingly, civil causes of action brought by victims and their families.
There are two main ways for victims of terrorism to bring civil claims for acts of terror. The first, and most well-established, is to file suit directly against a state sponsor of terrorism under an exception in the Foreign Sovereignties Immunity Act.2 The second, less well-known way, is to file directly against persons who have materially assisted Foreign Terrorist Organizations in carrying out the attacks.3 This is a rapidly developing area of law that has the potential not only to compensate victims, but to help defeat terrorist groups by depriving them of the funding that is essential to their operations.4
I. CIVIL JUDGMENTS AGAINST STATE SPONSORS OF TERRORISM
Federal law provides a private right of action against foreign countries that are designated state sponsors of terrorism, for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such acts.5 Under 28 U.S.C. § 1650A, suit may be brought against these states for personal injury or death caused by any of the acts listed above.6 Liability extends to any official, employee, or agent of the foreign state who was acting within the scope of his or her office, employment, or agency.7
A complete understanding of the specific terms in the statute is essential to bringing a successful case under § 1605A. Because sovereign immunity is a jurisdictional concern, in order to succeed, the complaint must allege that the state or its agent committed unlawful acts exactly as defined under the statute.8 The definitions of “torture” and “extrajudicial killing” are incorporated into § 1605A through the Torture Victim Protection Act of 1991 (TVPA).9 The TVPA is a federal law that imposes civil liability for acts committed by a state or its agents under actual or apparent authority of the state or under the color of law.10 This qualification is important. It means that torture or extra-judicial killing will not be actionable under § 1605A unless the plaintiff is able to show that the person carrying out the act was doing so as an agent of the foreign state.
TVPA defines extrajudicial killing as a “deliberated killing not authorized by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”11 The definition specifically excludes executions that are lawfully carried out under the authority of a foreign nation.12 “Torture” under the TVPA means:
any act . . . by which severe pain or suffering . . . whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining . . . information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.13
The term “aircraft sabotage” is incorporated into § 1605A from Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.14 Similarly, the definition of “hostage taking” is incorporated into § 1605A from Article 1 of the International Convention Against the Taking of Hostages.15
The term “material support or resources” is incorporated into § 1605A from 18 U.S.C. § 2339A, which is a criminal statute making it unlawful to knowingly provide any sort of material support to terrorists.16 Under § 2339A, material support or resources is defined as, “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, and transportation, except medicine or religious materials.”17 As will be discussed below, material support has been construed quite broadly by the courts. However, when making allegations under § 1605A, it is imperative to check the statute carefully to ensure that the facts in the complaint precisely support the statutory definitions. Complaints that do not meet the statutory definitions may be dismissed sua sponte.18
A. Subject Matter Jurisdiction: Foreign Sovereign Immunities Act
In general, federal district courts have original jurisdiction over all civil matters arising under the Constitution, laws, or treaties of the United States.19 Because international terrorism is regulated by federal law and by numerous international treaties ratified by the United States, it might seem obvious that the federal courts would have “federal question jurisdiction” over civil terror-related actions against foreign states.20 However, in most instances, this is not the case. Even if the wrongful act in question meets one or more of the statutory definitions outlined above, the Foreign Sovereign Immunities Act (“FSIA”) will prevent a plaintiff from filing suit against the great majority of foreign states.21
† Bryan Peeples is a graduate of Regent University School of Law. Bryan is also a recent retiree from the United States Navy, where he served for twenty-two years as a helicopter pilot. His Navy assignments include multiple combat deployments, culminating with a tour as the Commanding Officer of Helicopter Sea Combat Squadron NINE deployed aboard the aircraft carrier USS GEORGE H.W. BUSH. He also served as the Force Rotation Operations Officer for the U.S. Joint Staff, where he developed strategic plans and presented briefs to the highest levels of the nation’s military and civilian leadership. Bryan holds a Bachelor of Science in Biology, cum laude, from the University of South Carolina, and a Master of Arts with distiniction in National Security Strategy with a minor in Leadership and Ethics from the United States Naval War College. He attended law school while still on active duty and graduated number two in his class. While at Regent, Bryan earned twelve “Book Awards” for receiving the top grade in a law school class (a school record), and was selected by the law school faculty for the prestigious Honorable Richard B. Kellam Professionalism Award. Bryan works as an Associate Attorney at Pender & Coward P.C., a prominent law firm in Virginia Beach, Virginia, where he works in the areas of environmental law, worker’s compensation defense, construction, anti-terrorism and military law.
1 Thomas Grove, Militants from Russia’s North Caucasus join “jihad” in Syria, REUTERS, (Mar. 6, 2013, 2:25 PM), https://www.reuters.com/article/us-syria-crisis-russiamilitants/militants-from-russias-north-caucasus-join-jihad-in-syriaidUSBRE9251BT20130306.
2 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1605A(a (1)(c) (2012).
3 Id. at § 1605A(a)(1).
4 See Human Rights, Terrorism and Counter-terrorism, OFFICE OF THE U.N. HIGH COMM’R FOR HUM. RTS., (July 2008), https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf.
5 Foreign Sovereign Immunities Act § 1605A.
6 Id.
7 Id.
8 Id.
9 Torture Victim Protection Act of 1991 § 3(a)–(b); 28 U.S.C. § 1350 (2012).
10 Torture Victim Protection Act of 1991 § 2(a); 28 U.S.C. § 1350 (2012).
11 Torture Victim Protection Act § 3(a).
12 Id.
13 Torture Victim Protection Act § 3(b)(1).
14 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation art. 1, Sept. 23, 1971, 974 U.N.T.S. 14118.
15 International Convention Against the Taking of Hostages, art. 1, Dec. 17, 1979, 1316 U.N.T.S. 21931.
16 18 U.S.C. § 2339A(a)–(b)(1) (2012).
17 Id.
18 28 U.S.C. § 1605A(h) (2012); See Legal Information Inst., sua sponte, CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/sua_sponte [hereinafter Cornell Law School].
19 28 U.S.C. § 1331 (2012).
20 18 U.S.C. § 2338 (2012).
21 Foreign Sovereign Immunities Act § 1605.