November 4, 2015 | U.S. Senate Committee on the Judiciary Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts

How the Federal Government Fails American Victims of Iranian and Palestinian Terrorism

Watch the full testimony here

Mr. Chairman, I am honored to testify before you and your colleagues today. I commend you for calling this hearing to discuss what more the federal government can and should do to promote justice for American victims of Iranian and Palestinian terrorism. I will begin with an overview of the challenge, and conclude with several specific recommendations. I will focus my remarks on Iran, including those acts of Palestinian terrorism which it has sponsored, because that is an area of expertise for me and I know there are other witnesses who will focus on Palestinian terrorism not sponsored by Iran.

Iran has long been the world’s leading state sponsor of terrorist attacks. Iran has typically acted through Palestinian or other proxies. These terrorist attacks have frequently killed U.S. citizens. Iran has rarely paid a price for these terrorist attacks.

That assessment is reflected in a remarkable record of federal court judgments against Iran. Over the last two decades, U.S. federal courts have issued some 85 judgments finding Iran liable for specific acts of terrorism which claimed American victims.1 These judgments have resulted in the award of some $20 billion in compensatory damages and some $24 billion in punitive damages against Iranian entities and officials.2 Iran has, to my knowledge, never willingly paid a penny of these judgments. Victims and families of victims have received a total of about $225 million in judgments thanks to Iranian assets blocked by the U.S. government.3 Some $43.5 billion in judgments against Iran remain outstanding.4 Interestingly, over $1 billion of these damages were awarded against Iran’s current Supreme Leader Ayatollah Ali Khamenei himself.

The list of U.S. federal court judgments against Iran, and the cases underlying them, make for remarkable reading.

Over the decades, there has been a persistent tension regarding these judgments between Congress (which has passed laws facilitating them), the judiciary (which has applied those laws to the facts and repeatedly found Iran liable), and administrations of both parties (which typically see these lawsuits as depriving them of control over aspects of foreign policy). I describe this tension in great detail in my book titled Lawfare: Law as a Weapon of War, which will be published by Oxford University Press on December 1.  

and their material supporters have been notably effective at times in achieving various objectives. These include: (a) seizing assets of and otherwise putting financial pressure on terrorist-supporting states, including Iran; (b) deterring private individuals and NGOs from contributing to terrorist groups; (c) deterring banks from providing financial services to terrorist groups; (d) compensating victims; (e) bringing public and governmental attention to the harm done by terrorists to Americans; and (f) using the American judicial system to find facts and make determinations as to the connections between countries such as Iran and terrorist attacks by groups such as Hezbollah. I conclude that the U.S. executive branch, rather than treating such lawsuits mostly as a nuisance, ought to see them as an opportunity, and engage with them in a much more sophisticated, systematic, and proactive manner, including, in some cases, through public/private partnerships between the executive branch and terror victims’ families.