"State Sponsors of Terrorism

American University International Law Review, Dec 1999

By Keith E. Sealing, Published on 01/01/99

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1266&context=auilr

"State Sponsors of Terrorism

"State Sponsors of Terrorism" Are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act is Unconstitutional Keith E. Sealing 0 1 0 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information , please contact , USA 1 Sealling, Keith E. ""State Sponsors of Terrorism" Are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act is Unconstitutional." American University International Law Review 15 , no. 2 (1999): 395-455 - * Professor of Law, John Marshall Law School, Atlanta, Georgia. J.D., 1985, Temple University School of Law; B.S., 1982, University of Northern Colorado. Professor Sealing was a paid consultant on personal jurisdiction issues to the United States legal representatives of the defendants in Rein v. Socialist People s Libyan Arab Janmahiriya,995 F. Supp. 325 (E.D.N.Y. 1998) . B. A FOREIGN SOVEREIGN IS ENTITLED TO HEIGHTENED DEFERENCE IN PERSONAL JURISDICTION CLAIMS ........... 439 C. MINIMUM CONTACTS TIER ANALYSIS ...................... 440 D. CALDER ALONE DOES NOT SUPPORT JURISDICTION ......... 442 E. FAIRNESS TIER ANALYSIS ................................. 446 F. GENERAL JURISDICTION IS LACKING ....................... 448 G. ANALOGY TO THE DISTRICT OF COLUMBIA'S LONG-ARM STATUTE .................................................. 449 H. TEXAS TRADING DOES NOT SUPPORT JURISDICTION ......... 452 I. OTHER DEFECTS AS APPLIED TO LIBYA .................... 454 CONCLUSION ................................................. 454 INTRODUCTION In 1996, Congress, as part of the Antiterrorism and Effective Death Penalty Act of 1996,' amended the list of noncommercial tort exceptions to sovereign immunity2 in the Foreign Sovereign Immunities Act ("FSIA").3 This legislative action came in response to a federal court's determination that it lacked subject matter jurisdiction over Libya and alleged Libyan terrorists in Smith v. Socialist People's Libyan Arab Jamahiriya4, one of many cases resulting from the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. 2000] STATE SPONSORS OFTERRORISM The ambiguously worded' amendment appears to give federal courts both subject matter jurisdiction, which Congress clearly intended, and personal jurisdiction over the seven nations currently listed by the Executive Branch as "state sponsors of terrorism."' The United States District Court for the Southern District of New York, the only court to address the amended FSIA, unconstitutionally interpreted it as according the court personal jurisdiction over Libya in the refiled suit by the survivors, executors, administrators, and personal representatives of those killed over Lockerbie.' This Article will demonstrate that giving the court personal jurisdiction over a foreign sovereign simply because the Executive Branch has concluded that it is a "state sponsor of terrorism" or because an offshore terrorist act had some "effect" in the United States would violate the Due Process Clause of the Fifth Amendment' abof United Nations sanctions against Libya. The two are currently being held in the Netherlands, where they will be tried under Scottish law for human rights violations. See Aphrodite Thevos Tsairis, Lessons of Lockerbie, 22 SYRACUSE J.INT'L L. & CoM. 31 (1996) (describing the efforts of the families of the victims). 6. See 45 AM. JuR. 2D INT'L LAW sec. 83 (1999), citing Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094 (S.D.N.Y. 1982) (noting that the FSIA has been characterized as obtuse, creating numerous interpretive questions due to its bizarre structure and its many deliberately vague provisions). Perhaps those responsible for drafing the FSIA can be partially excused since "[p]rior to the enactment of the FSIA in 1976, United States law on sovereign immunity bordered on the incoherent." See McKay, supra note 5, at 445 (quoting Belsky et al., Implied Waiver Under the FSI: A Proposed Exception for Immunity for fiolation of Peremptory Norms of InternationalLaw, 77 CAL. L. REv. 365, 368 (1989). See also Hugel v. McNeil, 886 F.2d 1, 14 (1st Cir. 1989) (stating that "[p]ersonal jurisdiction, and specifically the constitutionality of State application of long-arm statutes, is a topic which over the years has puzzled first year students and learned jurists alike."). 7. Those states are Cuba, Iraq, Iran, Libya, North Korea, Sudan and Syria. sent the performance of traditional "minimum contacts" analysis Linder both the specific and general personal jurisdiction tests. I. CONCEPTS OF PERSONAL JURISDICTION This section of the Article briefly examines concepts of personal jurisdiction under international law '° and then addresses the central issue (...truncated)


This is a preview of a remote PDF: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1266&context=auilr

Keith E. Sealing. "State Sponsors of Terrorism, American University International Law Review, 1999, pp. 2, Volume 15, Issue 2,