phillips & hunt Can a victim of terrorism sue isis or its supporting countries?
The U.S. Department of Labor indicated on December 31, 2013, a total of 1582 civilian contractors were killed in Afghanistan. And then there are those murdered on and off American soil in acts of terror of all descriptions, including beheading, burning and more. Most recently, ISIS is alleged to have had some role in the largest mass shooting on American soil, which caused the death of 49 people in Orlando on June 12, 2016. As such, we wanted to look at whether ISIS or its supporting countries can be sued.
This isn’t necessarily about a money judgment, as collecting assets will be difficult to impossible given the issues regarding execution of assets, but lawsuits might be an effective way to use the judicial branch to expand victims’ rights to sue as Congress has essentially filibustered attempts to pass such laws as JASTA (see below).
phillips & hunt ISIS in a Nutshell
ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State of Iraq and the Levant) is a self-proclaimed worldwide caliphate. Some scholars have basically rooted the word “caliphate” to mean, “successor selected by God” with the goal for ISIS’s ways be universal. As American and European ways most contrast with their world view, ISIS has targeted efforts of violence towards the west. It’s ultimate mission is to use force and extreme violence to initiate a holy war and end of days in a grand design of ultimate martyrdom.
ISIS regularly distributes a high-end propaganda magazine in several languages, aimed at recruiting jihadists into is membership from the West both to join the fight in the middle east and to do atrocities abroad. The Clarion Project tracks the magazine, Dabiq, which “bills itself as ‘a periodical magazine focusing on the issues of tawhid (unity), manhaj (truth-seeking), hijrah (migration), jihad (holy war) and jama’ah (community).” It also contains “photo reports, current events, and informative articles on matters relating to the Islamic State.”
Even the name “Dabiq” is important and symbolic, as it is a place in Syria that is supposed to be the location for one of the final battles according to certain Muslim myths about a final apocalypse.
It has prolific use of social media for recruitment and fundraising as can be seen here:
ISIS’s atrocities both as a group and as a empowerment tool of separatists is as horrifying as it is tragic.
phillips & hunt Proposed Legislation: Justice Against Sponsors of Terrorism Act (JASTA)(UNPASSED)
9/11 Victims v. Saudi Arabia
In April of 2016, the U.S. Senate passed proposed legislation that allows families of September 11 victims to sue the government of Saudi Arabia called the Justice Against Sponsors of Terrorism Act (JASTA). However, the House of Representatives has not and the President threatens to veto it.
According to the summary on Congress.gov, “This bill amends the federal judicial code to narrow the scope of foreign sovereign immunity by authorizing U.S. courts to hear cases involving claims against a foreign state for injuries, death, or damages that occur inside the United States as a result of a tort, including an act of terrorism, committed anywhere by a foreign state or official.” It would be instructive in the possibility of cases against other nations.
Essentially, it amends the federal criminal code to permit civil claims against a foreign state or official for injuries, death, or damages from an act of international terrorism. Additionally, the bill authorizes federal courts to exercise personal jurisdiction over and impose liability on a person who commits, or aids, abets, or conspires to commit, an act of international terrorism against a U.S. national.
However, it contains a loophole, which states the Secretary of State has to engage “in good-faith discussions with the foreign-state defendant concerning the resolution of claims against the foreign state,” before filing.Additionally, some in America fear retaliation if it is passed not only in policy decisions, but what would happen if foreign “victims” of American efforts use the bill to put the United States, its taxpayers, service members and diplomats at “significant risk” of reciprocal claims, according to White House Press Secretary Josh Earnest. The bill has also raised tensions with Saudi Arabia.
In an op-ed, the widow of Tom Strada, said:As the widow of Tom Strada, who died in World Trade Center Tower One, I am outraged. And as the mother of three children who face the prospect of a future living in the shadow of radical Islamic terrorism, I am very concerned.Along with the family members and survivors of 9/11, we have fought long and hard to stand in a courtroom and lay out the long trail of evidence that leads back to the kingdom of Saudi Arabia.And:It is good policy to enact legislation that protects the rights of Americans to utilize our judicial system and hold accountable foreign states that aid in terrorist attacks on U.S. soil. And it is good policy to enact legislation that addresses the funding sources of terrorist organizations. After all, without money, terrorists cannot pay for their travel, training camps, bomb-making material, weapons or even their basic living expenses. They cannot forge passports or recruit new jihadists. Without money it is far harder for terrorists to kill Americans.Powerful words and we agree with her that policy is needed. She and all of the victims of terrorism are in our thoughts and prayers.
phillips & hunt Pending Terrorism Related Lawsuits
Since the Legislative branch cannot get it done, we wonder if the judicial branch can set precedent.
We therefore wanted to look at filed lawsuits and determine both legal precedent and what is being done through the American court system to allow some justice for victims of terrorism.
Estate of Sotloff v. Syria
Steven Sotloff was a journalist killed at the hands of an ISIS executioner in a video seen around the world in 2014. He was a former student at the University of Central Florida and was kidnapped in August 2013, after crossing into Syria from Turkey. in 2016, Sotfloff’s family filed a lawsuit in a U.S. court against the government of Syria. It seeks to hold the Syrian government responsible for his death. The central premise of the suit is that the Syrian government, led by President Bashar Al-Assad, has been supporting ISIS with money, weapons and other assets.
Lawsuit Complaint: D.D.C. 16-cv-00725 dckt 000001_000 filed 2016-04-18
The photos of Sotloff in Dabiq magazine, where ISIS not only takes credit for his murder, but brags about it, are beyond gruesome. We do NOT recommend anyone look at them, although we have placed the article here to show what kind of monsters we are dealing with with ISIS and their supporters. Again, the utmost warning of the horrifying nature is provided.
As the lawsuit is newly filed, its success is unknown. The victims note, “Defendant Syria is a foreign state that was designated a state sponsor of terrorism on December 29, 1979, pursuant to section 6 of the Export Administration Act of 1979, 50 U.S.C. App. § 2405, section 620A of the Foreign Assistance Act of 1961, 22 U.S.C. § 2371, and section 40 of the Arms Export Control Act, 22 U.S.C. § 2780.” It’s going to be interesting to see how it develops.
phillips & hunt Precedent of Suing a Group for the Actions of its Member
Estate of Michael Donald v. KKK
You can’t look at this issue without visiting this successful case against the Klan. It stands as somewhat of a model to bring a suit against hate groups.
According to the Southern Poverty Law Center, “Nineteen-year-old Michael Donald was on his way to the store in 1981 when two members of the United Klans of America abducted him, beat him, cut his throat and hung his body from a tree on a residential street in Mobile, Alabama.” This happened in my home town.
The SPLC successfully sued the Ku Klux Klan and won a multi-million dollar judgment for the family of Michael Donald, a black victim of lynching in Alabama. Payment of the judgment bankrupted the United Klans of America and resulted in its national headquarters being sold to help satisfy the judgment.
Under the terms of a Federal court verdict, Beulah Mae Donald, his mother, was given the property deed this week to a 7,200-square-foot building and 6.5 acres of wooded land. It previously served as national headquarters of the United Klans of America. A good news piece on the case and legacy is located here.
phillips & hunt Another Interesting Suit – Suing American Companies who “Assist” ISIS
Estate of Fields v. Twitter
Another interesting suit asks, “should Twitter be responsible for terrorist attacks if the propaganda and recruiting efforts that helped the extremist groups thrive allegedly took place on its platform?” See an article about it here.
Carl Fields of Cape Coral, Florida was one of two Americans shot and killed by a Jordanian police captain who opened fire on instructors at an international police training before being shot dead by security forces.
According to this article, “the lawsuit says ISIS claimed responsibility for the attack and issued a statement saying: “Do not provoke the Muslims more than this, especially recruited and supporters of the Islamic State. The more your aggression against the Muslims, the more our determination and revenge…time will turn thousands of supporters of the caliphate on Twitter and others to wolves.”
The lawsuit, filed in 2016 in the U.S. District Court for the Northern District of California, claims that “for years, Twitter has knowingly permitted the terrorist group ISIS to use its social network as a tool for spreading extremist propaganda, raising funds and attracting new recruits”
The Complaint can be read here and photos from Twitter are located above:
This attempts to stretch the actions of ISIS to those who help them recruit and spread the tentacles of violence and jihad.
phillips & hunt Threatened Suits & Legislation Related to Them
Saudi Arabia v. Twitter Users
According to this article, the Kingdom has executed 152 people in 2015, the highest number on record since 1995, according to Amnesty International. Meanwhile, ISIS has been accused of executing as many as 10,000 people, according to the Syrian Observatory for Human Rights. However, these figures are extremely difficult to verify.
Saudi Arabia has reportedly threatened legal action against any Twitter user who compares its decision to conduct executions under the color of law to punishments carried out by ISIS. According to the newspaper Al-Riyadh, the government would “sue the person who described… the sentencing of a man to death for apostasy as being ‘ISIS-like’.” Further, “They claimed the Kingdom’s courts would not hesitate to put on trial “any media that slandered the religious judiciary of the Kingdom.” The hashtag #SueMeSaudi popped up thereafter. No known suit has been field.
phillips & hunt Suing ISIS – Conclusions
Suing ISIS is probably dangerous. There are plenty of zealots and people who are willing to martyr themselves for ISIS or the radical Islamic based mission they advocate. Filing lawsuits would likely be dangerous to both the parties and their lawyers.Suing ISIS may legally challenging. Getting service and otherwise accomplishing the legal hurdles necessary to satisfy a federal court may be difficult. ISIS doesn’t have a corporate headquarters, embassy or registered agent. Certain countries do, but still may not recognize jurisdiction.Suing ISIS may not be worthwhile. ISIS is not a nation. It’s assets are scattered, tied to a host of sources and execution on them may be not only dangerous but legally challenging. ISIS is certain to have substantial assets, including some which are held in banks and some which which might be located in countries who would honor a judgment. However, this isn’t an easy process.But Suing ISIS may be important. American jurisprudence needs to do something. Lawyers need to weigh their options and consider a landmark suit if for nothing else to set up precedent on international law, accountability and that we as advocates won’t cower to reprehensible wrongdoing and will add another definition to possible JUSTICE. If the Legislature won’t help victims, maybe the judiciary will.Everyone has a voice they can lend to the fight. One of the voices we add is the ability to explain the law and litigate cases others may not take to get justice which is more than money- it is the changing of policies and laws sometime. As we often say, JUSTICE is spelled one way, but defined many different ways.
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