The Iranian nuclear deal has been consummated, and Iran is in the process of receiving its frozen funds, generally estimated at $100 billion. Many American terror victims harmed by Iranian-backed terror organizations have Federal judgments against Iran totaling several billion dollars. The US government for years has prevented these citizens from receiving compensation from the frozen monies. And now those monies are leaving these shores, and the hopes of terror victims are fading, though they hold valid judgments legitimately obtained from US courts. This state of affairs is a travesty and a sign of the contempt that both Presidents Obama and Bush and their respective administrations have held for US terror victims. How can the law now embodied in the JCPOA be more important than the law allowing terror victims to hold financially responsible their tormentors in a US court of law?
Gilda Radner once commented regarding her cancer that she belonged to a club of which she would have preferred not to be a member. Nobody who is anyways normal would hope to be a terror victim, and one who is a victim cannot fully explain to another the feeling of being a member of this also undesirable club. The pain, the hospitalizations or worse, the new future that does not track with what the future appeared to be, the physical and psychological scars and challenges—if one could explain to his friend how a banana tastes, maybe he could make him understand how it feels to be attacked by people one does not even know. When I testified last year in Sokolow vs. PLO, I stated that we can begin to measure the hatred of those who harmed us by realizing that though we had never met anyone involved in our attack and had never done them any personal wrong, they did their very best to try to kill us and dozens more around us. Is there anyone reading these lines who is ready to detonate a screw-laden explosive charge in order commit suicide and concomitantly kill and maim dozens of people that he or she has never previously seen or met? You get the idea.
But the acts of murderous terrorists were not the end. Our own government often came to the aid of those self-same terrorists to save them from either having to go to court or for having to pay damages meted out by judges and juries over the course of a decade. The US has been so obsessed by Iran, and in parallel, the failed Palestinian Authority (PA), that it has often found itself actively fighting its own citizens in US courts of law. A young American seriously wounded in a Hamas triple-suicide bombing in Jerusalem in the late ‘90’s poignantly told a Senate committee hearing called by Senators Cruz and Coons that he once sat at an appeals hearing, only to find the US legal representative sitting with his Iranian counterpart in order to prevent American citizens from taking Iranian assets to pay for justly-awarded damages. We in the Sokolow case were shocked when John Kerry’s State Department beseeched Judge George Daniels not to have the Palestinian Authority and the PLO put up any bond for the $655.5 million judgment against them as the case moved to appeal. Judge Daniels stated that he felt compelled to consider the US government’s arguments and set a very low bond against our lawyers’ pleas to the contrary.
Does Iran getting its billions back or the PA being shielded have to come on the backs of people who have already experienced unspeakable misery from these same organizations? While no one can undo the harm done and while the US may claim legitimate foreign policy goals, there still should be justice for American terror victims who have won anti-terror judgments in US district courts. The solution is not new as it was successfully used in the past. The US set up a 9/11 fund specifically to avoid lawsuits against the airlines associated with the terror attacks. It was clear to the US that lawsuits against the airlines could not only be devastating to the specific carriers but could also have a much larger effect on the aviation sector as well as on the overall US economy that was still in shock from the attacks. The Congressionally-approved fund had a 97% participation rate and was skillfully administered by Mr. Kenneth Feinberg.
A Terror Victims Fund would work on a similar principle. Any American citizen who holds a valid court judgment against Iran or the Palestinian Authority would present his or her claim to the fund. Payment would follow the dollar amount assigned by the courts minus any amounts already received from other sources. Someone accepting monies from the fund would sign a waiver against attempting to collect from either Iran or the Palestinian Authority. The same type of waiver against suing the airlines was one of the few requirements for those who chose to receive money from the 9/11 fund. Payment would take into account that terror victims have been represented by skilled lawyers who have also been denied compensation for their years of toil and expenses.
One might ask, and legitimately so, why should US tax payers pay the bills for foreign terrorists? This is a fair question especially as the underlying legislation, the Anti-Terrorism Act (ATA), was crafted to financially punish those involved in terror attack against American citizens overseas. The simple answer to the above question is that the US is not paying other people’s damages. Rather, it is paying for its own skewed policy choices. The US could have let Iranian terror victims go after the frozen assets before the monies were repatriated. It would have been easy for the US to tell Iran that the monies paid out are the price of supporting terror. Additionally, the US could have remained neutral in the Sokolow case, and in all likelihood an enormous appeals bond would have been required of the PA, who might then have chosen to settle after more than a decade of litigation. The US chose not to take these paths, and these policy choices should have consequences. At all times, the US has made it clear that the judgments handed down in ATA cases are valid and that US victims have the right to seek “just compensation”, something that the current administration has done everything possible to make impossible. The US cannot have it both ways: to shield Iran and the PA and at the same time claim to respect the judgments of Federal courts that have awarded billions in damages against the same bodies for their active participation in terror against American citizens. To be fair, the US should pay these judgments out of respect for the law and for its own citizens who followed the letter of the law in suing Iran and the PA (at times at the encouragement of the State Department). Yes, the Iranians and Palestinians should ideally be made to pay, but if it is US policy to actively save them from doing so, then the US should step up and make the terror victims whole.
The approach suggested above would have several outcomes. For US terror victims, it would allow for some closure. Some of those with judgments have fought for over a decade to receive monies awarded them. Efforts have been made to identify any Iranian asset, from ancient museum artifacts to swanky apartment properties. This process would end and terror victims (and their dedicated lawyers) could move on with their lives. For the US, the problem of bankrupting the PA or violating the terms of the agreement with Iran would be avoided. And for the terrorists and their sponsors? Well, they would be off the hook. And while that may not seem fair, there is a precedent. President Clinton, who signed the ATA into law, set up a fund for Iranian victims so that the latter would not try to take Iranian assets frozen in the US. The time has come for the US to put money behind its policies. It’s time for a dignified end to these never-ending anti-terror cases.
(The author was wounded with his son in a suicide bombing in Jerusalem in March, 2002 and is a plaintiff is Sokolow v. PLO. He is the CTO at Lishtot, Ltd)