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In the last days of his term, former president Bill Clinton signed into law a little-noted bill that accomplished something quite unprecedented in our nation’s history. The legislation — whose bipartisan supporters ran the political gamut from Tom DeLay to Barney Frank — authorized payment of $96 million in blocked Cuban assets to three American families, to satisfy a judgment they had obtained against Cuba for state-sponsored terrorism. In February 1996 three pilots for an anti-Castro group were flying over international waters in the Florida strait on a humanitarian mission, searching for Cuban rafters, when their two unarmed Cessna airplanes were shot out of the sky by Cuban MiGs. The attack was apparently in reprisal for a mission that had been carried out by the same group, Brothers to the Rescue, a month earlier, in which pilots had violated Cuban airspace and dropped anti-Castro leaflets over Havana. In late 1997 the families won a judgment against Cuba in a Miami federal court after a short uncontested trial, at which lawyers for Cuba did not appear. The same legislation also authorized payments of the compensatory damages portions of judgments that had been or were to be obtained by about a dozen specified American victims of Iranian-sponsored terrorism. In those instances, the U.S. Treasury was to pay the sums, though Congress urged the president to seek reimbursement for those outlays from a pool of about $400 million of blocked Iranian assets. Under that law, the Treasury subsequently paid, for instance, about $26 million to the family of Alisa Flatow, a 20-year-old American student who was killed in an April 1995 bus bombing in the Gaza Strip carried out by an Iranian-funded faction of the Palestine Islamic Jihad. The same law will also soon enable the family of U.S. Navy diver Robert Stethem to recover at least $21 million of the $321 million judgment that it was awarded this past April in a suit stemming from the 1985 hijacking of a TWA flight out of Athens by Iranian-backed Hezbollah terrorists. When the hijackers discovered that Stethem, 23, was a member of the U.S. military, they beat him, shot him to death, and then threw his corpse to the tarmac of Beirut airport, as television cameras recorded the scene. These payments are the undeniably cathartic culmination of a process that began in 1996, when, as part of the Anti-Terrorism and Effective Death Penalty Act, Congress created an exception to the Foreign Sovereign Immunities Act. Under the change, countries that have been designated as sponsors of terrorism by the State Department — a list that currently includes Iran, Iraq, Libya, Syria, Cuba, Sudan, and North Korea — can be sued by U.S. nationals in U.S. federal courts for injuries they sustain in terrorist acts. It is easy to see the allure of the new genre of suit. Yet hard cases, as they say, make bad law. The question is: Have lawmakers, responding to horrific cases like these, devised a unwise or unworkable remedy? Notwithstanding occasional public endorsements of these suits, both the Clinton and Bush administrations have generally fought to prevent private plaintiffs from collecting judgments against blocked assets. For good reason. Blocking programs have long been considered — and recognized by the U.S. Supreme Court — as among the most powerful tools available to the president to punish foreign states for abhorrent conduct and to encourage reforms. When 52 American embassy personnel were taken hostage by Iranian militants in November 1979, the United States seized $10 billion in Iranian assets, which then became perhaps the most important bargaining chip in winning the hostages’ release in January 1981. Blocked assets have traditionally been used to achieve broad objectives that the president believes will benefit the nation as a whole. In October 1999, when deputy secretary of the treasury Stuart Eizenstat told the Senate Judiciary Committee why he opposed releasing blocked Cuban assets to the Brothers to the Rescue families, he observed that during the previous 35 years some 5,900 American nationals had lodged $6 billion worth of claims against Cuba, stemming from the expropriations of their homes and businesses, as well as for the wrongful death of their relatives due to, for instance, execution. In that context, Eizenstat argued, bestowing $96 million — about half of the total amount of blocked Cuban assets then being held — upon three families and their lawyers was neither wise nor equitable. While no one can say whether Castro will now be deterred from terrorism due to the $96 million payment, it is hard to believe that Iran will be cowed into moderation by the prospect of having large judgments paid on its behalf by the U.S. Treasury — which is what is happening at the moment. Though Congress would like those outlays to be repaid from blocked Iranian assets, it is quite unclear whether they ever will be. The president may well doubt that the best use of $400 million in blocked assets is to distribute them to the first 20 or so American families (and their lawyers) who win terrorism judgments. If, in the future, there should be a change in the regime in Tehran, whoever is then president may want to reward the new leader by releasing blocked assets, rather than by forcing him to pay onerous penalties for the crimes of his predecessors. In that event, U.S. taxpayers will end up paying the enormous judgments against Iran that they are now cheering, naively imagining that those judgments will be paid by terrorists. No matter how honorable individual lawyers who practice in this area may be, are we comfortable with the concept of commissioning any and every lawyer to act as a private secretary of state, choosing the times and places to confront nations that sponsor terror and command weapons of mass destruction? For instance: Judicial Watch — the conservative ethics watchdog group run by Larry Klayman — has filed two suits against Saddam Hussein’s Iraq since December, including one that was filed on behalf of victims of the 1995 bombing of the Murrah federal building in Oklahoma City. (You read that correctly.) These suits are “bad from a foreign policy perspective, and troublesome from a moral perspective,” says Anne-Marie Slaughter, a professor of international law at Harvard Law School. Slaughter, who favors bringing terror-sponsoring leaders to justice in criminal courts, says that she views private civil suits against nations as a step backward: “To blame the entire Iraqi people — or the people of any state — for the actions of leaders they never elected is wrong.’ As this article is being written, State Department legal adviser William Taft IV is attempting to devise a comprehensive, coherent, equitable approach to compensating victims of terrorism. When his proposal is announced, Congress should take the opportunity to step back and hold honest, sober, wide-ranging hearings on the hard questions posed by these cases. We must try to provide fair and reasonable compensation to all terror victims, and if that money can then be seized from terrorists, great. But if we cannot realistically hold international terrorists accountable through the United States civil tort system, we should not allow self-interested lawyers to kid us into thinking that we can.

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