"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
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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
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* 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)