A Herculean Task for Judge Hercules: Analytical Avoidance in Iran v. Elahi
Akron Law Journals
A Herculean Task for Judge Hercules: Analytical Avoidance in Iran v. Elahi
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Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Legal History Commons Recommended Citation Gryta, Anneliese (2008) "A Herculean Task for Judge Hercules: Analytical Avoidance in Iran v. Elahi," Akron Law Available at: http://ideaexchange.uakron.edu/akronlawreview/vol41/iss1/4
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GRYTA_FINAL
A HERCULEAN TASK FOR JUDGE HERCULES:
ANALYTICAL AVOIDANCE IN IRAN V. ELAHI
I. INTRODUCTION
In Iran v. Elahi,1 the United States Supreme Court missed a chance
to weigh in on a seldom-used, yet completely radical tool in the war
against terrorism: Section 1610(a)(7) of the Foreign Sovereign
Immunities Act (FSIA).2 Section 1605(a)(7) peels away sovereign
immunity so that terrorist states may be sued in United States courts
when they injure United States citizens.3 Then remarkably, Section
1610(a)(7) allows victims to attach that foreign state’s property in order
to satisfy judgments obtained under the former provision.4 Congress
amended the FSIA in 1996 to include this provision, and in so doing,
extended the jurisdictional reach of U.S. courts further than it ever had
before.5 Few countries in the world have so stripped away sovereign
immunity protections, and those that have, have done so in response to
this U.S. legislation.6 This Comment examines the health and welfare of
this statutory provision, exploring its history and tracking its status
through a particular case: Iran v. Elahi. Viewed pragmatically, the
1610(a)(7) attachment provision should be removed from the books even
though it supports the policies of deterrence and redress. The Supreme
Court failed to render a clear decision on the issue, missing a chance to
tell Congress that their provision was dead on arrival. For reasons
explored in this Comment, it is unlikely that the provision will ever be
used.7 The Supreme Court should have delved more deeply into the
heart of the provision and sent a clear signal to Congress. If the courts
do not apply it, the terrorist state exception is left toothless.
In Iran v. Elahi, the 1610(a)(7) argument for attachment met with
little success, even though it best supports the policies which underlie
1. Iran v. Elahi, 546 U.S. 450 (2006).
2. See infra Part IV.
3. See infra Part II.
4. See infra Part II.
5. See infra Part II.
6. See infra Part IV.B.3.
7. See infra Parts III, V.
249
the terrorist state exception to immunity: deterrence and redress.8
Almost all cases filed under the terrorist state exception have been
marked by a default judgment, as there is little incentive for a terrorist
state defendant to appear in court,9 much less pay its judgment creditors.
Recovery for the plaintiffs in Alejandre, Flatow, Cicippio and Rein has
been characterized as a “Herculean task” by one scholar,10 and has been
documented somewhat less dramatically by many others.11 As shown in
Part III, Congress has struggled to provide a means of redress for victims
of terrorist state attacks, but has not yet created an optimal solution.12
The availability of a monetary judgment in the United States which
belongs to Iran distinguishes Iran v. Elahi from a series of similar cases
the judgment constitutes actual attachable assets located within the
United States and does not present the same legal hurdles which have
limited access to diplomatic or frozen assets.13 By framing the issue as
it did, however, the Supreme Court was able to avoid the 1610(a)(7)
argument and an unpleasant quagmire involving the compensability of
U.S. victims of terrorism, international politics, foreign policy, and the
legislative history of the FSIA terrorist state exception.14
No other terrorist state exception case has presented such a
favorable opportunity for redress (besides Flatow),15 so it is particularly
noteworthy that the Supreme Court missed an opportunity to clearly
analyze the statutory pathways to redress for Elahi and shed light on
murky FSIA doctrine for future plaintiffs. If Iran v. Elahi is not the type
of case that Congress had in mind when it enacted the foreign state
8. See infra Parts III-IV (explaining how the 1610(a)(7) attachment provision is essential in
order to carry out the underlying policies of the terrorist state exception).
9. William P. Hoye, Fighting Fire With . . . Mire? Civil Remedies and the New War on
State-Sponsored Terrorism, 12 DUKE J. COMP. & INT’L L. 105, 136 (2002) [hereinafter Hoye,
Fighting Fire] (“Until a more broadly based group of successful plaintiffs are able to collect
routinely on judgments awarded under the Act, without the extraordinary and unusual remedy of
special legislation, there seems to be little incentive for foreign state (...truncated)