X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
WASHINGTON — Jackie Pflug and Glenn Johnson Jr. have never met, but the two will always share a special bond: Their lives were changed forever by violent acts of terrorism, and they feel that Libya, the country they believe is responsible, must pay. But a settlement deal that has allowed Johnson and the other families who lost loved ones in the Pan Am Flight 103 bombing over Lockerbie, Scotland, to collect their long-awaited compensation from the Libyan government has set in motion a chain of events that may prevent Pflug and other victims of the 1985 EgyptAir hijacking from ever seeing any money from their lawsuit. “It would be a shame to let them off the hook,” says Pflug, who was left with permanent injuries after being shot in the head by hijackers aided by the Libyan government. A compromise was reached last year between the Libyan government and the families of the 270 people who perished when Pan Am Flight 103 exploded over Lockerbie in 1988. As part of the deal, the families of the Pan Am victims will each receive $10 million in compensation for Libya’s role in planting the bomb. The Libyans have agreed to pay the money in three installments — each installment pegged to conditions set out by the Libyans. The families already received the first payment of $4 million when the United Nations lifted its sanctions against the former pariah state in September 2003. They will receive another $4 million if the United States lifts certain sanctions against Libya, and will receive the final $2 million payment when Libya is removed from the U.S. State Department’s list of “State Sponsors of Terrorism.” With relations between the United States and Libya rapidly thawing in recent months, it appears to be just a matter of time before the remaining sanctions are lifted and Libya is removed from the list. The Libyan government has set a deadline of Sept. 22 for the move — which would free American companies to do business with the oil-rich country — but it may not take place until after the presidential election in November. But removing Libya’s name from the list of states that sponsor terrorism and unfreezing Libyan assets that have been held by the U.S. government — two specific conditions of the compromise — are exactly what lawyers for the EgyptAir victims fear could doom their case. Without the U.S. government’s control of the frozen assets, which are estimated at $1.2 billion, there is no incentive for Libya to settle with other American victims of Libyan-sponsored terrorism. And removing Libya from the list may put the country out of the victims’ legal reach. Even if the case does result in a judgment against the Libyans, collecting on that judgment could become next to impossible. “We support the Pan Am victims getting their full settlement; however, we believe that Libya should compensate all American victims,” says Richard Heideman, of Heideman, Lezell, Nudelman & Kalik, who represents the EgyptAir plaintiffs. “The biggest concern in my judgment is that our position against Libya remain unified. They must compensate all the American victims before being given any restorative treatment like being taken off the list.” DELAYING TACTICS The lawyers representing the victims of the EgyptAir hijacking don’t have any doubts about the merits of their case. “I would love to try this case,” says Steven Perles, a D.C. solo practitioner who is also representing the EgyptAir victims. “It is a slam-dunk.” The problem, they say, is that without the frozen assets to use as leverage to force a quick settlement, the case could drag on indefinitely through the appeals process. Even if the attorneys are able to secure a judgment, there are still the problems with collecting from a sovereign state. “If Libya is no longer on the list, then the hammer at the end of the trial disappears,” Perles says. “[For now,] we can say, ‘Pay now or pay a larger sum later.’ The blocked assets are the hammer that will force them to settle.” Without that leverage, the lawyers fear that the Libyan government will push to delay the case at every turn — a litigation tactic that is not uncommon. “The attorney representing Libya has told us in no uncertain terms that their strategy is to contest jurisdiction and to appeal every decision they can,” Heideman says. “I have to take them at their word.” Arman Dabiri, the attorney for Libya and the three individuals named as defendants — including Libyan leader Col. Muammar Qadhafi — declined to comment on his specific strategy for the case since it is still active litigation. His most recent filing on May 12, however, was a second motion to dismiss for lack of jurisdiction, arguing that under U.S. law it is unconstitutional for a U.S. judge to adjudicate the case against his clients. Heideman says that the Libyans have already employed a similar delay strategy in other cases involving terrorism victims. “The fact that they utilize and abuse the appeals process is evidence to me of how they will conduct themselves in the future,” he says. “It is just not a fair playing field. Let’s not forget these are . . . innocent victims that just happened to be on an airplane that was hijacked.” A DEADLY FLIGHT Pflug remembers every detail of the hijacking. She wasn’t originally supposed to be on Flight 648 that Thanksgiving weekend in 1985. She was scheduled to be on an earlier flight from Athens, Greece, to Cairo, Egypt, but postponed her departure to watch her husband’s volleyball team compete in the later stages of a tournament. Flight 648 was the last flight out that day. Twenty-two minutes into the flight, the plane was hijacked by the Abu Nidal terrorist organization. An ensuing gunfight left one hijacker dead and an Egyptian sky marshal wounded and forced the plane to land in Malta for refueling. When the Maltese government refused to refuel the plane, the terrorists threatened to shoot a hostage every 15 minutes until it complied. Over the next 24 hours, five people — two Israelis and three Americans, including Pflug — were shot in the head at point-blank range and thrown onto the tarmac. One of the Americans and one Israeli died before Egyptian commandos stormed the plane. Another 57 passengers were killed in the rescue attempt. The shooting left Pflug with a plate in her head and permanent partial blindness. She also suffers from short-term memory loss — although it has improved and her long-term memory remains intact. The short-term memory loss was so severe that at one point soon after the shooting, she needed directions just to get from her bedroom to her kitchen, and she developed epilepsy that requires daily medication. “I always thought we should do something to say this is not right. You cannot just leave us behind,” says Pflug, who wrote a book about her ordeal and is now a motivational speaker. “No one paid for anything. We paid for our medical bills and just went on.” The suit filed in the U.S. District Court for the District of Columbia last year, on behalf of Pflug, the other American victims, and their families, seeks $3 billion in compensation. It is pending before Judge Gladys Kessler. LEAVING THE LIST Dabiri, the attorney for Libya, believes that “the million-dollar question” still comes down to jurisdiction. There is no legal precedent that addresses whether a country once labeled a terrorist state is still liable for alleged terrorist acts once the designation is removed. “No country has ever gotten off this list,” Dabiri says. The only other country that has come close is Iraq, which, according to the State Department, won’t be removed from the list until the new government in place formally renounces terrorism. In a recent case filed against Iraq in D.C. federal court on behalf of prisoners of war held during the Persian Gulf War — and in a separate case pending against Libya — courts held that the United States does retain jurisdiction in these cases under the Foreign Sovereign Immunities Act as long as the country was on the State Department list at the time the suit was filed. Under the Foreign Sovereign Immunities Act, foreign states are immune from the jurisdiction of the U.S. courts unless the case falls within a specified exemption. In 1996, a terrorism exemption was added allowing lawsuits against foreign states as long as the state was designated as a “state sponsor of terrorism.” A bigger problem for the EgyptAir plaintiffs could be ultimately collecting on a successful judgment. If the United States returns the frozen Libyan assets, the EgyptAir victims will be in the position of trying to collect the judgment from a sovereign nation potentially unbound by U.S. courts and seemingly unwilling to accept responsibility for the hijacking. Recently, the country spoke of taking a hard line toward paying further sums. “America instead should compensate Libyan families who lost dozens of their children in the war launched by [then-President Ronald] Reagan on Libyan cities,” Libyan Foreign Ministry spokesman Hassouna al-Shawish told the country’s press agency earlier this month. Crowell & Moring partner Stewart Newberger, who represents terror victims in two other lawsuits against Libya, disputes the idea that collection will be a problem if assets are unfrozen. His plan, he says, would be to locate a U.S. oil company that does business with Libya and attempt to attach his judgment to oil payments. “It may take a few more months, but my clients have waited years,” he says. Perles, who attempted a similar collection process when he represented terror victims against Iran, has his doubts. “Whether the attachment would survive . . . is up for debate,” he says. “I have tried in Iranian cases and I have not been successful.” LOOMING DEADLINE Another hurdle for the EgyptAir victims is that the compromise the Libyans reached with the Pan Am families includes a deadline for the families to receive their compensation. Currently, in order for the families to receive the last two payments, the United States must lift its remaining sanctions and remove Libya from the State Department list by Sept. 22. While the deadline has been extended in the past, there are no guarantees that the Libyans will agree to do so again. That leaves both sides in a delicate position and under tight time constraints. While the attorneys for the EgyptAir victims have been quietly lobbying Congress, the White House, and the State Department to maintain the status quo, the families of the Pan Am victims have launched a more vocal lobbying effort. “We are lobbying for a review of the process. . . . [We are asking to] only lift the sanctions if it is appropriate, but if they are going to be lifted, please do it in a timely manner for the Pan Am victims,” says Glenn Johnson Jr., chairman of the Victims of Pan Am Flight 103 Inc. Johnson, who lost his daughter on the Pan Am flight, heads the group that represents about 80 percent of the families. The group has been to the Hill and met with Bush administration officials to plead their case. Johnson emphasizes that the families are not lobbying on behalf of the Libyans, but simply asking that the government remember the Pan Am victims’ deadline in making its decision. As for any potential ramifications that come from the decision, “each individual incident has to follow its own life,” he says. “We are not opposed to any other group taking actions.” State Department officials did not return calls for comment, but in daily press briefings, State spokesman Adam Ereli has said that the United States believes it is important for the Libyans to resolve claims with American victims and that the State Department is following developments closely. “We trust that the White House will do the right thing,” EgyptAir plaintiffs’ lawyer Heideman says. James Kreindler, the attorney for the Pan Am families who negotiated the Lockerbie compromise, believes that the Pan Am settlement could actually help the EgyptAir victims. “There is a perceived tension, but it is not there in fact,” he says. “The EgyptAir families are best off when they can say that the Pan Am victims have been paid their $10 million.” Michelle Holbrook, whose sister died in the EgyptAir hijacking, says that it seems more like a “trade-off.” “They deserve money because they lost their loved ones,” she says, “but so did we.” Bethany Broida is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.