FDD Files Amicus Brief in Support of the Families of Victims of Iranian Terrorism

Washington, D.C., Dec. 1, 2017 – The Foundation for Defense of Democracies (FDD) has filed a ‘friend of the court’ brief in advance of oral arguments to be heard by the Supreme Court on December 4. The landmark case, Rubin v. Islamic Republic of Iran, will determine whether the families of victims of Iranian terrorism can collect judgments awarded against Iran for its terrorist activities even if the assets are not considered “commercial property.”

FDD is a nonpartisan research institute focusing on foreign policy and national security.

FDD’s amicus brief argues that victims of terrorism holding judgments against Iran “should be empowered to execute against property undisputedly owned directly by Iran.” In this instance, the assets are Iranian-owned Persian antiquities currently on loan to a Chicago museum. The brief makes the case that Section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) withdraws sovereign immunity from execution on terror judgments for “the property of a foreign state” and “the property of an agency or instrumentality of such a state.”

The plaintiffs are American citizens who were injured in a September 4, 1997 terrorist attack in Jerusalem. On that day, three suicide bombers from the terrorist group Hamas simultaneously detonated bombs – filled with nails and glass shards – on the popular Ben Yehuda Street pedestrian mall. Five people were killed, including three 14-year-old girls: Sivann Zarka, Smadar Elhanan, and Yael Botvin, an American citizen. More than 200 others were wounded, including eight U.S. citizens who are the plaintiffs in this case.

Hamas, which is materially supported by Iran, claimed responsibility for the attack. To date, Iran, regarded by the State Department as the leading state sponsor of terrorism, has refused to pay judgments rendered against it and has defied court decisions ordering compensation for victims of terrorism.

The eight American victims of the attack and their families sued Iran, claiming the Islamic Republic was legally responsible for their pain and suffering. The plaintiffs won and were awarded a $71.5 million civil judgment. Because Iran has few resources within the United States, the victims attempted to seize the Persian antiquities, arguing that a provision of the FSIA contained a terrorism exception that would allow the plaintiffs to use the antiquities as a means to pay the judgment in part.

However, in 2014 a federal judge in Chicago and a three-judge panel of the Seventh Circuit Court of Appeals ruled against the terror victims and in favor of Iran and the museums because, in part, the antiquities were not loaned for commercial purposes.

The FDD brief states that the simplest and most natural reading of the text of the FSIA is that it applies, as written, to “the property of a foreign state,” such as the artifacts at issue in this case, regardless of whether the property is used for commercial purposes.

As a result, FDD argues in the brief that the Supreme Court should reverse the lower court ruling that wrongly states that such assets should be protected.

FDD CEO Mark Dubowitz, an Iran expert who has advised U.S. administrations and testified more than 20 times before Congress and foreign legislative committees on Iran’s malign behavior, said that from the 1996 enactment of the terrorism exception to sovereign immunity through § 1083 of the 2008 NDAA, Congress addressed state-sponsored terrorism six times in twelve years.

“All this legislative activity marched in the same direction: toward making it easier for terror victims to obtain and execute on judgments against state sponsors of terrorism,” Dubowitz said “These amendments reflect Congress’ sustained effort to compensate victims of state sponsored terrorism, as well as to punish and deter terrorism against U.S. citizens.

“Put simply, Congress wants state sponsors of terrorism to pay,” Dubowitz said.

FDD was represented pro bono by Kent Yalowitz of Arnold & Porter, a DC and New York based law firm. 

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The Foundation for Defense of Democracies (FDD) is a Washington, D.C.-based non-partisan policy institute focusing on foreign policy and national security. Visit our website at www.defenddemocracy.org and connect with us on Twitter, Facebook, LinkedIn and YouTube.