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The jokes started almost as soon as the government identified Osama bin Laden as the prime suspect in the hijackings of four American airliners on Sept. 11. Rather than send troops to battle him in his impenetrable mountain hideout, why not go after him with the toughest and best-equipped trial lawyers in the world? If the goal is to make him pay … who knows better how to do that? Actually, there’s something to the idea, says Harold Hongju Koh, a professor of international law at Yale Law School. Before he became an assistant secretary of state for human rights and labor in the Clinton administration, Koh was one of the lawyers suing Radovan Karadzic, the Serb leader, for rape, torture and genocide in the Bosnian war. The suit, which was brought in 1993 on behalf of about 20 survivors of Serbian atrocities, mostly women, went to trial in the Southern District of New York last year, and ended in a $4.5 billion default judgment against Karadzic. Koh doesn’t really expect the plaintiffs to collect anything from Karadzic, who is still a fugitive from the International War Crimes Tribunal at The Hague. But suits like this serve at least three other purposes, all of which may apply to the sort of person who flies airliners into skyscrapers: the enunciation of legal norms of civilized conduct, the denial of a safe haven for the perpetrator (and his assets) in Western countries, and deterrence from future acts. There is no question, Koh believes, that bin Laden’s actions, if they could be proven, would be covered under the same statute that was used against Karadzic — the Alien Tort Claims Act, passed in 1789 to give American courts jurisdiction over pirates, and dormant for more than a century until it was rediscovered by human rights lawyers in the 1980s. Karadzic made the process easy by checking into a New York hotel on his way to a conference at the United Nations. Serving papers on bin Laden might be a little trickier. Another approach is advocated by Washington solo practitioner Steven Perles, who thinks that terrorists are much more likely to be deterred if they face the real prospect of being made to pay up some day. Perles prefers to focus on the states that sponsor and support terrorist organizations. His statute of choice is the Foreign Sovereign Immunities Act — specifically, the 1996 amendment to the act that for the first time allowed American citizens to sue specified foreign nations for deaths or injuries resulting from terrorism. Previously, governments as a rule were immune from such suits, but the 1996 amendment lifted that shield for nations designated as state sponsors of terrorism by the U.S. State Department. The list is compiled annually but has stayed largely the same for a decade; it currently comprises Iran, Iraq, Syria, Libya, Cuba, North Korea, and Sudan. Afghanistan is not on the list because the U.S. doesn’t recognize the Taliban government. But Perles doubts that the Taliban has much in the way of assets worth going after anyway. The 1996 amendment was intended to allow the families of victims killed in the bombing of Pan Am 103 over Lockerbie, Scotland, to sue the alleged perpetrator, Libya — a suit brought in 1993 by international lawyer Allan Gerson, and still ongoing in the Eastern District of New York. (Gerson was with New York’s Hughes Hubbard & Reed when the suit was filed. The lawyers leading the suit now include James Kreindler of New York’s Kreindler & Kreindler and Douglas Rosenthal of the Washington, D.C., office of Chicago’s Sonnenschein, Nath & Rosenthal). Perles has used the law to sue Iran as the patron of Islamic terror groups including Hamas and Hezbollah, on behalf of Americans killed in bombings in Israel and Americans held hostage in Beirut. The suits have so far resulted in four default judgments totaling more than $900 million. Under a law passed last year, a portion of those judgments was paid to the plaintiffs by the U.S. Treasury, and converted into a claim against Iranian assets frozen since 1979. Perles, who is considering a suit on behalf of victims of the 1998 U.S. embassy bombings in Africa — also attributed to bin Laden — says, “Some evidence appears to point to Iran or Sudan as state sponsors” of the bombings. If that pans out, he believes, those two countries might be logical targets of lawsuits growing out of the Sept. 11 attacks. In fact, he said, relatives of people killed in the Sept. 11 attacks contacted him in the days and weeks afterward, seeking his advice on a damage suit. And what did he tell them? “I told them,” he said, “to finish mourning and get back to me later. This is going to be a long game.” Jerry Adler is a senior editor of Newsweek and the coauthor, with Allan Gerson, of “The Price of Terror,” a look at the legal and political aftermath of the Lockerbie bombing.

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