Suing Terrorists: The Politics of Civil Lawsuits Against State-Sponsors of Terrorism

Contrary to the doctrine of sovereign immunity, a long standing principle of international law and international relations that protects states from being hauled before the courts of other states, civil lawsuits against state-sponsors of terrorism allow for just that. They permit U.S. citizens to sue certain states in U.S. courts for acts of terrorism committed outside the United States. These lawsuits do not take the form of traditional lawsuits as they are not designed to function within a litigation model that aims to compensate victims for injury, deter future bad acts, and provide forums for the establishment of truth. Instead, they are about politics. These lawsuits are a relatively new tool in the foreign policy toolbox, their framework having been meted out over the last 35 years as congress and several presidents have battled for control over it. The primary factor that continues to drive the lawsuits, and thus determines which branch wins the battle over their framework at any particular point in time, is the influence of terrorism victims’ advocacy groups. The power of this influence is best evidenced in three ways: (1) the battle over a right to sue states; (2) the battle over control of foreign state assets to execute terrorism judgments against states; and (3) the battle over control of diplomatic negotiations to recover unpaid judgments. The primary result of advocacy groups’ influence is a framework that places severe constraints on the foreign policy bureaucracy. It places foreign policy outside normal foreign policy-making channels and in the hands of the courts. The long-term implication of these lawsuits is that they unintentionally affect foreign policy through the court system, the very issue that for centuries, the doctrine of sovereign immunity has tried to avoid