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It started with a simple question. “Can you help?” a woman asked a lawyer-author in Kansas City, Mo., on a tour promoting his book about the still-unresolved Pam Am 103/Lockerbie tragedy and litigation. The woman wanted to know if Allan Gerson, counsel to a number of families suing Libya for the terrorist bombing of Pam Am 103 in 1988, could help her family go after the perpetrators of the Sept. 11 attacks. It would be the last simple question that Gerson, an international law scholar, would face in the coming year as he began to explore the possibility of, once again, using the civil justice system to hold a foreign government or its agents liable for terrorism — a concept he had been espousing long before Congress moved in that direction. Ultimately, Gerson agreed to help. And after bringing on board leading plaintiffs’ lawyer Ron Motley of Mt. Pleasant, S.C.’s Ness Motley, the men filed a lawsuit last August in federal court in Washington, D.C., on behalf of nearly 3,000 Sept. 11 families seeking $1 trillion in damages against a number of major Saudi Arabian banks and charities, members of the Saudi royal family and the nation of Sudan — designated a state sponsor of terrorism by the United States. Burnett v. Al Baraka Investment & Development Corp., No. 02-1616. (A similar suit by about 1,000 families has been filed against parties that include the terrorists themselves, in the Southern District of New York by New York’s Kreindler & Kreindler. Ashtar v. Al Qaeda Islamic Army, Nos. 02-6977, 02-6978.) “I told her it is enormously expensive and difficult going after a foreign government — difficult, difficult,” Gerson says. “On the other hand, it can be enormously self-satisfying.” The difficulties have not stopped such suits. Lawyers and others say a cottage industry of terrorism litigation has developed in the last decade. These suits, usually seeking recovery for acts committed abroad, are difficult, expensive and time-consuming. They raise jurisdictional questions, proof problems and, even when judgments are won, sometimes insurmountable recovery hurdles. And the 800-pound gorilla in the courtroom is not always the accused terrorists or sponsors of terrorism, but the U.S. government when it thinks a suit clashes with U.S. interests abroad. The possibility of the Bush administration’s intervening to seek dismissal of the Motley-Gerson suit was rumored recently. The reaction by the Sept. 11 families was swift and bitter. “The most frightening thing at this point is our own government,” says Liz Alderman of Armonk, N.Y., who lost her son at the World Trade Center and who sits on the lawsuit’s client committee. “We are doing what Bush said to do. That they might try to get this case dismissed or delayed — delay is just as bad — I just couldn’t believe it.” The government isn’t saying what it plans. The State Department says in a statement: “The department is aware of the lawsuit but does not comment on pending litigation. The United States is not named as a defendant in the case.” ‘TREMENDOUS PROGRESS’ Despite the possibility of government intervention and lack of response by defendants to the suit, Gerson says, “We could go to trial now and win.” The investigation has made “tremendous progress,” he says, in getting evidence. He and others say the suit benefits in many ways from prior actions. The Pam Am and Oklahoma City families lobbied successfully for the passage of the 1996 Anti-Terrorism and Effective Death Penalty Act allowing suits against terrorist states and sponsors of terrorism, they note. The Pam Am families, the Flatow family and others litigated important jurisdictional and constitutional questions. And it was the family of David Boim, murdered in Israel by Hamas in 1996, who, this past summer, won a federal appellate ruling in a lawsuit against two Arab charities that may prove key to the Sept. 11 families’ litigation. “There is legislation on the books that has been construed as authorizing suits against financial supporters of terrorism,” says John F. Murphy of Villanova University School of Law, who has written on this issue. “It also permits suits against individual terrorists, but the problem there is they don’t have deep pockets. But charitable organizations, some of them have substantial assets and, more importantly, have assets located in the U.S. These have really changed the equation in this litigation.” Before the 1996 act, the equation was heavily weighted against American victims of terrorism. The Foreign Sovereign Immunities Act (FSIA), originally enacted in 1976, gave immunity to foreign states in all cases that did not fall into specifically enumerated exceptions. After a series of cases in which courts found that terrorism, torture or hostage-taking were immunized acts under the immunities act, Congress used the 1996 anti-terrorism law to amend it. Suits are now permitted against foreign states identified by the State Department as state sponsors of terrorism for injuries or death caused by “torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources.” The present law allows punitive damages. Seven countries are on the official list of sponsors of terrorism: Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. “Many states began expanding long ago on the terrorism front to protect their nationals by providing criminal remedies,” says international law scholar Robert Goldman of American University Washington College of Law. “We and the Israelis are the most aggressive on criminal remedies. More importantly, we are now trying to create remedies by stripping away immunities and broadening the reach of our civil law.” Despite the U.S. government’s concerns that these civil suits may trigger “spite” suits against the United States, he predicts that Gerson and Motley will have Congress’ sympathy if their litigation runs into difficulties. “Litigation like this tends to complicate the life of diplomats,” he says. Last December, as he began looking into Sept. 11 litigation, Gerson recalls, his first problem was that “I didn’t know who the defendant was.” Ex-colleagues in the intelligence community of which he once was a part as a Justice Department lawyer and as counsel to U.S. ambassadors to the United Nations repeatedly told him to follow the Saudi trail. He found experts on the Middle East and learned about the financial infrastructure of al-Qaida and Islamic banking and charities. He examined documents held by congressional committees, the FBI and the CIA. “I wanted to know the financial, religious and political context,” he says. That led him to conclude that Saudi Arabia was key. But because Saudi Arabia is not on the official list of state sponsors of terrorism, it was immune from a suit. His case would be built against the financial supporters of the attacks. More Sept. 11 families became his clients, and when he thought he had a case, Gerson went searching for a law firm to underwrite and lead the litigation. Finding one, he says, was not easy because of the large financial investment required and because of conflicts with the large banking and charity defendants with operations in the United States. A colleague suggested he meet Motley, in whom he says he found a “brother” who “was essentially doing domestically what I was doing internationally.” Motley was already involved in a Sept. 11 suit against Iran and Iraq. He agreed to take on the case with Gerson as co-counsel. Motley set aside $10 million for an investigation, and they hired a well-known French investigator. Since the suit was filed in August, they have visited 13 countries and examined thousands of documents. “The main hurdle here is there is no Uncle Sam to do the investigation,” says Gerson. In Pan Am 103, the United States was investigating and Libya was considered an enemy. “Here, the Saudis have relations with the U.S. and so we get no cooperation,” he says. If gathering the evidence has been the hardest part of the case, the easiest is the lack of jurisdictional battles, says Gerson: “They have all been won by the Pan Am people with the 1996 anti-terrorism act.” At the beginning, the lawyers’ greatest fear was the possible intervention of the U.S. government. But he says, “We don’t think there is any legal or policy basis for the government to get dismissal of this case, and there is a high political price to pay if they do.” The government’s legal argument might be that immunity exists for some of the defendants, notably the members of the Saudi royal family. American’s Goldman says suing members of the Saudi royal family “presents certain kinds of problems.” An old and ill-defined doctrine of head-of-state immunity might be raised to insulate those family members, he says, but he calls it a “fuzzy issue.” Less fuzzy and more troublesome for the plaintiffs would be a policy argument by the U.S. government, one that contends the courts should defer to the president for political reasons. The political reasons here involve war with Iraq and the need to keep Saudi Arabia as an ally. “The United States is in a terribly uncomfortable position here,” says Goldman. “If it moves to dismiss, it looks like it’s siding with the people with deep pockets. If it goes the other way, it looks like it’s supporting the suit. They have many issues with Saudi Arabia and these things will be on the table.” Assuming the suit does go forward, the plaintiffs believe a recent 7th Circuit ruling will be key to holding the financial backers of the Sept. 11 terrorists liable. In Boim v. Quranic Literacy Institute and Holy Land Foundation, No. 00-2905, an appellate panel held that for the Boims to hold these organizations liable for an act of international terrorism when they donated money to Hamas, they must show the murder of their son was a reasonably foreseeable result of making a donation. “Ever since we filed this suit in May 2000, we felt it was important to make anybody who makes financial contributions which they know are going to organizations that engage in terrorist activities liable for damages that grow out of that,” says Nathan Lewin of Washington, D.C.’s Lewin & Lewin, counsel to the Boims. “The next stage is to go after the individuals who contribute, knowing the organizations send their money to terrorists.” If the defendants in the Motley-Gerson suit think they will lose or the cost of litigating will be too high either financially or politically, settlement becomes a possibility. If Pan Am 103 is a model for settlement, Gerson says, this one would require three things: renunciation of terrorism, compensation and an apology. “I don’t know if that will be the template for the future,” says Gerson, adding that a settlement offer in the Pan Am suit is now actively being considered by Libya and the families. AFTER JUDGMENT, FRUSTRATION If there is no settlement, “then we’ll get a judgment,” he says confidently. And a judgment would lead them into the often lengthy and frustrating effort to collect against assets, either unfrozen or frozen by the United States. “There is the utter absence of any coherent policy” by the federal government on payment of terrorist-related judgments, says international litigator Allan Mendelsohn of D.C.’s Mendelsohn & O’Keefe. Congress, he says, is seriously out to consider what it should do for all victims of terrorism “because terrorism is here to stay.” The Sept. 11 families in the suit know that this litigation may be lengthy. “As long as it takes, and whatever is needed,” says Alderman. “I can’t imagine anybody backing down on this. If we are successful, this will be for everybody, for all Americans.”

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