The Foreign Sovereign Immunities Act (FSIA) states that “property of a foreign state in the U.S. shall be immune from attachment, arrest, and execution except as permitted in this Act.” 28 U.S.C. § 1605(a)(1)

In General: The FSIA grants immunity to a foreign government from suit by American Citizens.

Exception: Under certain circumstances, one may sue a foreign country and collect from the assets that country maintains in the United States.

Example: The FSIA allows a person injured by terrorists to sue the country that sponsored the terrorists.

Background: Alisa Flatow

Alisa Michelle Flatow was born on October 5, 1974, in the United States.

On April 9, 1995, Alisa Flatow was a passenger on the number 36 Egged bus, which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community.

At about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus. The blast critically injured Alisa, and she later succumbed to her injuries.

The Shaqaqi faction of Palestine Islamic Jihad claimed responsibility for the terrorist act which caused Alisa Flatow’s death. Palestine Islamic Jihad is a series of loosely affiliated factions rather than a cohesive group. The Shaqaqi faction is a terrorist cell with a small core membership. Its sole purpose is to conduct terrorist activities in the Gaza region, and its sole source of funding is the Islamic Republic of Iran.

In July 1996, the Department of State’s Coordinator for Counterterrorism, Phillip Wilcox, stated at a meeting with Alisa’s father that the Department of State was satisfied that the group which had claimed responsibility for the bombing, the Shaqaqi faction of Palestine Islamic Jihad, had in fact perpetrated the bombing, and that the Islamic Republic of Iran provided approximately two million dollars to Palestine Islamic Jihad annually in support of its terrorist activities.

The 1996 “Flatow Amendment”

Alisa’s father, Stephen Flatow, sued Iran for damages on the theory that Iran was responsible for her death.

The 1996 “Flatow Amendment” to the Foreign Sovereign Immunities Act allowed American victims of terrorism to sue countries that are designated as terrorism sponsors by the State Department. The amendment created a private cause of action against any official, employee, or agent of a foreign state who commits a terrorist act which results in the death or personal injury of a United States citizen—and also allows for “punitive (punishing) damages.”

The District Court’s Opinion

Judge Royce Lamberth of D.C District Court found that Iran was responsible for Alisa Flatow’s death.

He wrote: “Alisa Michelle Flatow’s death was caused by a willful and deliberate act of extrajudicial killing because the explosion was caused by a bomb that was deliberately driven into the bus by a member of the Shaqaqi faction of the Palestine Islamic Jihad acting under the direction of Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani and Ali Fallahian-Khuzestani.”

The Court estimated Alisa would have earned $1,508,750 throughout her lifetime. The family also suffered untold physical and emotional expenses. Moreover, Alisa suffered pain and suffering from her injuries before succumbing to them. Judge Lamberth noted that recent amendments to the FSIA included the right to punitive damages.

Fighting Terrorism in the Courtroom

Judge Lamberth wrote: “As it proved impossible to fight terrorism by bringing the terrorists themselves to justice, Congress created jurisdiction over and rights of action against foreign state sponsors of terrorism. By creating these rights of action, Congress intended that the Courts impose a substantial financial cost on states which sponsor terrorist groups whose activities kill American citizens. This cost functions both as a direct deterrent, and also as a disabling mechanism: if several large punitive damage awards issue against a foreign state sponsor of terrorism, the state’s financial capacity to provide funding will be curtailed.

“The attack on the No. 36 Egged bus in the Gaza Strip which inflicted fatal injuries to Alisa Michelle Flatow and seven Israelis has been demonstrated by the testimony to have been part of an extensive campaign of terror carried out to obtain the political ends of the Islamic Republic of Iran. The Court can find no case law in support of the proposition that premeditated violent acts undertaken upon civilian targets are a legitimate part of the actions of any government.

“This Court is cognizant that the purpose of this statute is to deter acts of terrorism which result in the death or personal injury of United States nationals. In this Court’s judgment, in order to ensure that the Islamic Republic of Iran will refrain from sponsoring such terrorist acts in the future, an award of punitive damages in the amount of three times the Islamic Republic of Iran’s annual expenditure for terrorist activities is appropriate.”

In addition to millions of dollars in solatium (“emotional damages”) to members of Alisa Flatow’s family including her father, mother, three sisters and brother, Judge Lamberth awarded $225,000,000.00 in punitive damages to Alisa Flatow’s estate.

The total award equaled $247 million in damages against Iran.

In Sum

In 1999, the D.C. District Court found that the Islamic Republic of Iran sponsored the terrorist act that caused the death of Alisa Flatow, an American citizen. The FSIA allows an American to sue a foreign country for terrorist acts resulting in injury or death. Recent amendments to the Act granted American courts the ability to “punish” foreign governments by awarding “punitive damages” in addition to actual damages.

Thoughts: Conflict of Interest

Congress (the Legislative branch) passed an amendment to the FSIA allowing a court (Judicial branch) to punish foreign governments designated as terrorist states by the State Department. The court punishes by awarding hundreds of millions of dollars in punitive damages.

Note: The FSIA created a conflict of interest between the three branches of government. The FSIA allows Congress (Legislative Branch) and the Judiciary to influence foreign governments and foreign policy. The President (Executive Branch) may not agree that punishing terrorist states is in line with his foreign policy goals. Accordingly, it has proven very difficult for any of the victims of terror to collect the damages awarded to them at trial.

We end with a practical question: How does a prevailing party collect from property that Iran maintains in the United States?

Dedicated in memory of Alisa Michelle Flatow, daughter of Shmuel Mordechai and Rashka Flatow L’Iluluy Nishmas Chana Michal Bas Shmuel Mordechai V’Rashka Flatow Nift’rah Al Kidush Hashem, 10 Nissan HY”D.

Eliyahu Asher Prero, Esq., is a practicing lawyer and certified mohel. He graduated magna cum laude from Seton Hall Law with a concentration in intellectual property law and served as a clerk for the Honorable Thomas A. Sarlo, Superior Court of New Jersey, Civil Division—Bergen County. He is currently an associate at the law firm Schenck, Price, Smith & King, where he focuses on constitutional law, commercial litigation, and insurance defense. Please address all correspondence to The Jewish Link.