X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In 1979, the government of Iran stood between 52 American embassy hostages and freedom. Their torture and captivity lasted for 14 months. Twenty-three years later, the American government, specifically the Bush administration, stands between the ex-hostages and their legal battle to make Iran — part of what the president calls an “axis of evil” — pay for their 444 days of confinement. That their own government has become, as one former hostage says, the de facto defendant in their lawsuit is a bitter and painful irony born of international law and politics. Regardless, the former Iran hostages resolutely cling to the hope that a federal judge on Feb. 20 will overrule the government’s opposition and allow them to seek $8 billion in damages from Iran — the amount of ransom paid by the United States for their release in 1981. The hostages’ suit is one of a growing number filed by American victims of terrorist acts sponsored, funded or carried out by foreign nations and their agents. Congress opened the door to those suits by amending the Foreign Sovereign Immunities Act in 1996, in an effort to deter terrorism. The hostages’ case is similar to the other suits in that there is no easy or straight path to recovering damages against nations formally identified by the U.S. Department of State as state sponsors of terrorism. The battle is fought in litigation, legislation, administrative action, international policy and the media, says Stuart Newberger of Washington, D.C.’s Crowell & Moring, who is handling a large number of the pending lawsuits. ALGIERS ACCORDS But the Tehran embassy case is also different because it involves the Algiers Accords, a set of agreements between Iran and the United States. To free the hostages, the United States in 1981 agreed to bar any claims in U.S. courts against Iran that arose from the seizure and detention of the hostages. On Wednesday, U.S. District Judge Emmet G. Sullivan of Washington, D.C., will hear arguments on whether subsequent enactments by Congress have trumped the Algiers Accords. Roeder v. the Islamic Republic of Iran, No. CV03110. Citing the Algiers Accords, the State Department moved to intervene after a default judgment was entered against Iran on the eve of the ex-hostages’ damages trial. It says it is not defending Iran but U.S. obligations. Regardless of what U.S. officials say, “They are in effect defending Iran, and against the backdrop of our war on terrorism,” says retired U.S. Air Force Col. David Roeder, lead plaintiff in the suit. “I think it was their ineptitude that got us in the situation in the first place, and their continued ineptitude that kept us there 14 months,” he says. The department, he notes, fought — unsuccessfully — congressional legislation in 1996 and 2000 to open federal courts to suits against terrorist nations. “Now, no doubt about it, they are defending Iran against the first victims of modern terrorism,” he says. “That makes no sense to this fighter pilot.” The Nov. 4, 1979, takeover of the U.S. embassy in Iran was the starting point for a still-escalating war of terrorism against the United States, Newberger says. Until then, embassies were generally considered inviolate. But “Iran threw out the rules,” Newberger says. He adds that lawyer-rich Iran, ironically, insisted and still insists on negotiating by the rules. David Bederman of Atlanta’s Emory University School of Law, an international law expert, says that the 1981 Algiers Accords are a series of documents. A general declaration contains the agreement to withdraw all U.S. claims pending at the time against Iran and to bar all future claims arising out of the hostage-taking, he says. Another document establishes an Iran-U.S. tribunal in The Hague, Netherlands, where commercial claims unrelated to the hostage situation were to be settled, says Bederman, who was a legal adviser to the tribunal. AFTERMATH OF ’80 During the two decades following the accords, Iran, Libya, Iraq and their surrogates are believed to have engaged in multiple terrorist acts — the bombings of the U.S. embassy in Beirut; the taking of American hostages in the Middle East, such as reporter Terry Anderson; the bombing of Pan Am Flight 103; and the murder of American tourist Leon Klinghoffer, among others. Some ex-hostages see a clear line between the U.S. response to their captivity and subsequent terrorist acts. “Many of the things that have happened since 1979 could be traced back to the fact that Iran wasn’t dealt with more severely, whether through lawsuits or military action,” says former hostage Al Golacinski, who retired from the foreign service in 1989. In the early and mid-1990s, a few American victims of terror did file suits against Iran, but they were dismissed because of the Foreign Sovereign Immunities Act, which set narrow limits over the right of Americans to sue foreign governments in U.S. courts. Congress changed that in 1996. A provision of the Antiterrorism and Effective Death Penalty Act creates an exception to immunity from suit for state sponsors of terrorism. Only countries accused by the State Department of being state sponsors of terrorism can be sued. There are currently seven: Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. But there was still a huge problem. “There was no enforcement mechanism,” says Newberger, who, along with other lawyers, began lobbying Congress to find an answer. A solution came in 2000 with the so-called Victims of Trafficking and Violence Protection Act. It created a subrogation arrangement under which claimants in specifically identified lawsuits in which judgments already were won or were close to being entered could “trade in” their judgments to the U.S. Treasury. The Treasury would advance payments of up to $400 million, the amount of Iranian money frozen in U.S. bank accounts. The law empowered the president to seize the money. The statute identified 13 cases against Iran. All but one have led to judgments, and nine of those have been satisfied by Treasury payments. Some have been substantial. Former Associated Press reporter Terry Anderson’s award, won by Newberger, was $341 million. He has collected his $41 million in compensatory damages but not the full $300 million punitive award. The payment scheme allows judgment holders to trade their punitive awards for 10 percent of their compensatory award or to try to enforce the full punitive award on their own. Newberger had four cases covered by the 2000 statute. He has filed six new ones and estimates another two dozen are pending in federal court. But there is no enforcement mechanism yet for paying new judgments. As many of these cases entered the public eye, a former U.S. ambassador to Iran, and a hostage himself, Bruce Laingen, was asked by several senators more than a year ago at a Capitol Hill reception why the ex-hostages hadn’t taken advantage of the 1996 anti-terrorism act. That conversation led to a meeting of former hostages in the law offices of Lankford & Coffield, a small firm in Alexandria, Va., that does international arbitration. “We looked at the law and felt there was a case,” recalls V. Thomas Lankford. “We also felt there was a great wrong that needed to be corrected.” The class action was “the first opportunity for some modicum of justice,” recalls Roeder, an assistant Air Force attach� at the embassy. “I had no difficulty entering the fray. I knew what the [captivity] had done to my family, and to a greater extent, to the others, my roommates, or cellmates, in Iran.” Golacinski, who was in charge of embassy security, was more cautious because he remembered the obstacles to suing Iran before 1996. But he left the lawyers’ meeting “convinced Congress had put in place a mechanism that trumps the Algiers Accords.” HOSTAGES SUE The hostages’ class action was filed Dec. 29, 2000. On Aug. 16, 2001, after hearing what the judge called “some of the most gut-wrenching testimony” of his 17 years on the bench, the trial judge entered a default judgment against Iran. He scheduled a damages hearing for Oct. 15, but on Oct. 12, the government moved to intervene and quash the default judgment. The State Department argued that there was no cause of action under the 1996 act and that the lawsuit was proceeding “in contravention of the United States’ commitments under a binding international agreement (of which the plaintiffs are the primary beneficiaries), and thus, may jeopardize the nation’s foreign relations by calling its commitment to its international legal obligations into question.” But some members of Congress were following the case. Within a month of the department’s motion, both houses passed, as part of the department’s appropriations bill, � 626(c), amending the 1996 act to apply specifically to the former hostages’ lawsuit. The amendment actually states the docket number of the case. The conference report to the bill, which was adopted by both houses, adds that subsection (c) “quashes” the department’s motion to vacate the default judgment. In a December hearing, Sullivan asked another of the hostages’ counsel, Terrance G. Reed of the Law Offices of Terrance G. Reed, what the effect of the amendment was. He insisted the effect was to abrogate the Algiers Accords. Although the State Department now conceded that the court had jurisdiction as a result of � 626(c), the Justice Department’s James Gilligan argued there was no remedy. Congress, he said, had not clearly abrogated the accords. Sullivan noted that the act hadn’t specifically said that it was junking the Algiers Accords. But he also expressed skepticism that Congress would give the hostages a day in court, but no remedy — a “cruel” gesture, he said. In an unusual statement in court, he asked for further clarification by Congress. CONGRESS SPEAKS A week later, on the session’s last day, Congress responded, coming down on the side of the hostages. The conference report to the defense appropriations bill said � 626(c) “acknowledges that, notwithstanding any other authority,” the ex-hostages had a claim under the 1996 terrorism law and the default judgment should stand for the purpose of a damages award. The report was passed by both houses and signed by the president. On Jan. 17, Sullivan asked the government and the hostages’ counsel to brief the appropriate weight of the conference reports in discerning Congress’ intent. Courts generally should not interpret federal statutes to violate international law if they can reasonably avoid doing so without clear intent by Congress to violate it, says international law scholar Curtis Bradley of the University of Virginia School of Law. “Then comes the big question: What’s enough for this clear indication by Congress?” he asks. “Frankly, the courts are sort of mixed about that.” In a case about 15 years ago involving the Palestinian Liberation Organization observer mission to the United Nations and a federal law shutting down all PLO operations in the United States, the court required a strong clear statement by Congress that it intended to violate a U.N. convention, Bradley says. “But there have been other cases where courts were not quite as strict and more willing to read in an intent by Congress,” he explains. “Some courts would look at the legislative history of the statute.” Courts should not give much weight to legislative history that comes after enactment of a statute, says Bradley, but because the enactments here were so closely related, courts would give some weight to them. “It would not surprise me if the court would find this latest version saying ‘notwithstanding any other authority’ is a sufficiently clear indication Congress wants this to happen.” Government lawyers are telling the court that Congress’ most recent action was not actually part of the conference report adopted by both houses and thus should be given no weight. They say the plain language of the 1996 law governs and it creates no cause of action for the former hostages in contravention of the Algiers Accords. Lankford and his partner, William Coffield, say they are “dead wrong.” They provided the court with a primer on the legislative process and argue that the accords are an illegal “devil’s bargain” obtained under duress. Next to the statute itself, conference reports are the best indication of congressional intent, says Charles Tiefer of the University of Baltimore and a former House deputy general counsel. “The executive branch is doing its traditional job of trying its very hardest to keep faith with past agreements,” he says. “But there really is no doubt that Congress did not intend to keep faith with the Algiers Accords. The congressional provision cannot be read to envisage leaving the plaintiffs empty-handed once they prevail.” The State Department is always a “stumbling block” in these matters, adds Crowell’s Newberger. “They don’t want anybody to interfere with their conduct of foreign policy, and nowhere is that culture more entrenched than in the office of legal advisor. They hate — that’s not a strong enough word — the 1996 statute. They were totally opposed to the 2000 legislation. Fortunately under our Constitution, Congress and the president — not agency lawyers — make these decisions.” A policy prohibiting these lawsuits, he says, would send “such a bad message to Iran.” And in the end, that’s what it’s all about — the message, not money, say the former hostages. “What happened to us was unprecedented — to take over an entire diplomatic mission and threaten to kill us unless paid a ransom,” says Golacinski. “These things need to be acknowledged or it does a disservice to the American people. There’s unfinished business, and the ledger needs to be balanced.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

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 © 2021 ALM Media Properties, LLC. All Rights Reserved.