From the WSJ Opinion Archives
DISPATCH
Justice for Alisa
America's antiterrorism law is about to be put into action--and none too soon.
Sometime in the next few days or weeks, if all goes well, a settlement is going to be reached between Congress and the administration over one of the most bizarre standoffs of the Clinton years. It will free individual Americans to carry on the fight against terrorists with tactics the administration has so far feared to use--the enforcement of high-stakes court judgments against regimes like those that rule in Tehran and Havana.
The settlement involves a deal that will allow the passage of compromise version of the Justice for Victims of Terrorism Act. This is bipartisan legislation, backed by Sens. Connie Mack, a Florida Republican, and Frank Lautenberg, a New Jersey Democrat. Congress crafted the act in an effort to force the administration to obey an earlier law, which allowed individuals who had felt the sting of terrorism to sue terrorist regimes like Cuba and Iran in federal court.
The first big judgment gained under the law was won by a humanitarian organization of Cuban exiles, Miami-based Brothers to the Rescue, who use aircraft to patrol the Florida Straits in an effort to save the lives of Cubans fleeing communism. In 1997, the Brothers was awarded more than $180 million after Castro shot down two aircraft which were returning from a leafleting flight and search mission. A second important judgment was won by the family of Alisa Flatow, a Brandeis University undergraduate from New Jersey, who while traveling in Israel in 1995 was slain in a bombing sponsored by the Iranian regime. In 1998, her estate won a $247.5 million judgment against Iran.
Such an approach seems like anathema to those of us who abhor the litigiousness of modern life. But Congress acted only after years of failure, on the part of both the Bush and Clinton administrations, to take the fight against terrorism to enemy soil. It turns out that private actions have a constitutional basis. In the same section of Article I of the Constitution in which the framers delegated to Congress the power to declare war, they also delegated to Congress the power to grant letters of marque and reprisal. These were, in effect, licenses to private individuals to act against pirates and other enemies. Civil lawsuits aren't exactly the same as letters of marque, but the principle of private action in piracy and other cases is enshrined by the Founders.
In any event, when Alisa Flatow's father, Stephen, and Brothers to the Rescue sought to collect on their judgments, they were blocked by the Clinton administration, which feared the repercussions should they seize, say, diplomatic property or assets that have been frozen by American fiat.
Secretary of State Madeleine Albright, as envoy to the United Nations in 1994, had mocked Cuba's attacks on the Brothers by declaring "This is not cojones." But once the issue got to court, the State Department opposed enforcement of the judgment against the Cuban government. She did not seem to comprehend that the risks against which the State Department was warning were precisely those Congress has decided it was prepared to run.
So work was begun on legislation to permit such claimants as Brothers to the Rescue and the Flatow family to collect their judgments. In the interim, the courts have been continuing to act. Earlier this year, major judgments were won by the families of two other Americans, Matt Eisenfeld and Sara Duker, who were killed in another Iranian-backed terrorist bombing in Israel. Several former hostages in Lebanon, including Terry Anderson, Joseph Cicippio, Frank Reed and David Jacobsen, have won judgments. Then last week, the widow of William Higgins, a Marine lieutenant colonel who was tortured to death by Hezbollah, won a $355 million judgment against Iran. The Associated Press quoted the judge in the case as saying she was convinced by testimony that Hezbollah was controlled by Iran.
Suddenly, what once looked like a series of modest lawsuits is adding up to judgments with a combined total against Iran alone of more than $1 billion. It's unlikely the legislation moving through the Congress will unfreeze enough funds so that all these claims can be covered. But even permitting the payout of only part of the judgments that have now been handed down will cause practical problems for nations that are sponsoring, or permitting, terrorist groups to attack Americans. This will have repercussions far beyond Iran and Cuba.
Sens. Lautenberg and Mack have been pressing for passage of the legislation before Congress goes home next month. Mr. Lautenberg, in a statement released by his office Tuesday, said the legislation "will finally make the Anti-Terrorism Act of 1996 effective by allowing victims of terrorist attacks, like Steve Flatow, to collect their damages and achieve the justice they've fought and won in U.S. courts."
When two GIs were killed in the bombing of the La Belle nightclub in Berlin back in the 1980s, President Reagan waited only days to send warplanes to attack Libya. Some day people will look back and wonder why after subsequent attacks on Americans it has had to take more than five years to gain a portion of justice.
Mr. Lipsky is a contributing editor of The Wall Street Journal. His column appears Wednesdays.
