Counterterrorism in the courtroom

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Ed Morgan is a law professor at the University of Toronto. He was an expert witness for the plaintiffs in Ungar v. Palestinian Authority and Bouzari v. Islamic Republic of Iran. He was a presenter at the Case Western Reserve University/Scholars for Peace in the Middle East Conference in October and is a member of SPME.

Speaking at a fundraiser after 9/11, George W. Bush quipped: “The enemy attacked us thinking we were soft, thinking our culture was corrupt, thinking we’d just kind of roll over and say, okay, fine, we’ll figure out if we can sue ’em.”

Yet some lawyers are doing just that. Historically, litigation is a means of redress that Americans have embraced with particular gusto. And so it comes as no surprise that they are using it to fight terrorism.

This month, the U.S. Supreme Court encouraged the trend by refusing an appeal by the Palestinian Authority in a suit brought by the surviving infant son and estate of Yaron Ungar, an American who was killed along with his wife while attending a wedding in Israel. A Hamas cell originating in PA territory carried out the attack. While the U.S. court viewed the PA as being responsible for events within its domain, it did not view the PA as an entity that is entitled to a state’s legal immunities.

In refusing the appeal, the Supreme Court upheld the lower court’s judgment of US$116 million. More important than compensation for the sole survivor of the attack (for whom no amount of money can buy back his parents, of course) is the fact that the judgment has led to a tracing of the PA’s substantial assets — including an attempt to seize the Palestine Liberation Organization’s UN Mission building in New York.

Meanwhile, another U.S. court has issued a freeze order against bank accounts containing an estimated $1.3-billion in assets belonging to the PLO and PA.

While Ungar creates a legal landmark, the mother of all terrorism litigation is a suit brought by 600 families of 9/11 victims.

In mid-2002, a group called Families United to Bankrupt Terrorism launched an action against seven international banks, eight Islamic charities, the Saudi Arabia-based Bin Laden Group, and three Saudi princes for allegedly bankrolling the al-Qaeda network. It is a far reaching claim, although the plaintiffs face the difficult task of linking the financing with the execution of the attacks.

The motive behind the 9/11 case is not so much to achieve a monetary award. Instead, as the name of the plaintiff group declares, the goal is to financially cripple those that would target civilians.

Terrorism plaintiffs have had a mixture of successes and setbacks over the years. In 1988, Robert Bork, President Ronald Reagan’s choice for a U.S. Supreme Court appointment, dismissed a claim against Libya for its support of terrorist attacks. Bork reasoned that no foreign state — even one that his President referred to as “Looney Tunes” — can be sued in domestic courts.

But that ruling was followed several years later by the case of Leon Klinghoffer, whose widow brought a successful action against the PLO after the 1985 hijacking of the cruise ship Achille Lauro, during which her disabled husband was shot and thrown into the sea. The controversy over who can and cannot be sued caused Congress to enact the Antiterrorism Act of 1990, allowing civil actions against certain designated sponsors of violence.

In Canada, on the other hand, the legal system has seemed paralyzed. Last year, in a case relevant to those of Maher Arar and Zahra Kazemi, a claim by Toronto resident Houshang Bouzari for kidnapping and torture suffered in his native Iran was dismissed in Ontario for want of jurisdiction.

An opposition private member’s bill was submitted to Parliament this fall that would permit Canadians to sue designated terrorist organizations and states, but the bill has stalled. Bill S35 proposes two crucial legislative amendments — one to the Criminal Code to give Canadian terror victims a civil remedy against terrorists and their supporters; the other to the State Immunity Act, to end the immunity given to state sponsors of terrorism. Parliament should revisit the proposal as early as possible in the new year.

Canadians pride themselves on solving even the most contentious problems not by force of arms but by rule of law. It’s time either the courts or the legislature take the initiative and allow Canadian victims the legal redress they deserve.

Counterterrorism in the courtroom

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