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Courts imperfect remedy for terrorism

Elizabeth Sullivan The (Cleveland) Plain Dealer

It’s not surprising that lawmakers in a country addicted to lawsuits would see the courts as a good way to make tyrants and terrorists accountable.

Since the early 1990s, Congress has heaped law upon law and appropriations rider upon rider to create a hodgepodge of ways terrorist victims can sue their afflictors, including sovereign states.

As a result, a relative handful of U.S. victims of oppressive governments in Cuba, Iran and Iraq have raked in multimillions of dollars each – more than $500 million altogether. That has led to a torrent of new cases, with hundreds more in the pipeline.

Foreigners eager to cash in also are using a little-known 1789 statute enacted to go after pirates to try to enforce their terrorism-related claims against foreign companies in U.S. courts.

There’s just one teeny-tiny problem.

Most of the hundreds of millions of dollars awarded so far have come right out of U.S. taxpayers’ pockets – more than $375 million of it, to be precise.

There also is more than a whiff of favoritism. The first to the bank are those with the connections, moxie or timing to win high-level backing for their claims. And among those frozen out: the 52 Americans taken hostage in Iran and 17 American prisoners of war tortured by Saddam Hussein’s henchmen during the 1991 Persian Gulf War whose legal claims have been thwarted.

Nor has any of the judgments made the slightest dent in a single terrorist’s war chest or a single tyrant’s lifestyle.

All came directly out of assets already on U.S. soil, most right out of the U.S. treasury itself. And those drawn from Cuban and Iraqi assets effectively will be reimbursed by American taxpayers – and already have been in the Iraq case, in which about $95 million was paid to 178 human shields used by Saddam. After that award, President Bush issued a March 2003 order trying to bar any more payouts so he could spend the balance in Iraq.

Nearly half of all blocked Cuban assets in the United States were paid to the families of several Cuban-American pilots shot down by Cuban MiGs in 1996, effectively shortchanging thousands who have been standing in line for that money for decades. That leaves taxpayers on the hook for any future judgments.

There are 5,700 prior claimants to Cuban assets frozen during the Kennedy administration, says Stuart Eizenstat, former deputy treasury secretary under President Clinton, including some people whose loved ones were assassinated by Fidel Castro’s regime.

“Congress created a right of action,” Eizenstat said in a phone interview. “But it didn’t create an effective remedy. You can get a default judgment against a foreign government, but how do you enforce that?”

Eizenstat, who served as President Carter’s domestic policy adviser during the 1979 Iran hostage crisis, says the millions in frozen Iranian assets proved “critical in getting the hostages back.”

Hundreds of millions of dollars eventually were released to Iran, with hundreds of millions more still being contested in the International Court of Justice in The Hague, Netherlands.

“Using the legal system of class-action lawyers to get at this money is generally not a good idea,” Eizenstat says. “It’s inherently unfair and tends to reward people with political connections.”

Yet, if it’s such a lousy idea, why is it still being used so widely? In the latest example, reported by the Boston Globe recently, a U.S. lawyer – seeking to enforce a $116 million terrorism judgment against the Palestinian Authority for the 1996 murder of an American and his Israeli wife – has gotten a federal judge to freeze Palestinian assets in the United States. The case threatens to impound U.S. aid to the Palestinians. The couple’s small children are the plaintiffs.

The answer lies in the facts of such cases. Who wants to stand in the way of people who have suffered so terribly? Even apart from compensation, these cases have the virtue of tending to expose the way terrorists and tyrants operate while giving satisfaction to victims who feel justice is being done.

The problem remains that it’s not the tyrants who pay – it’s you and me.

Until Congress solves that problem, the mishmash of laws it has created is little more than a slush fund for those who are first to the trough.

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