A Herculean Task for Judge Hercules: Analytical Avoidance in Iran v. Elahi

Akron Law Review, Dec 2008

This Comment examines the history, development, and application of the FSIA’s terrorist state attachment exception through the lens of Iran v. Elahi, as well as the larger problems and ramifications which ripple forth from the case. Part II, Sections A, B, and C present the background of the FSIA, the terrorist state exception, explaining the difference between 1610(a)(7) attachment of a foreign state’s property and 1610(b)(2) attachment of the property of an agency or instrumentality of the foreign state. Part III explores the intractable problem of recovery in terrorist state exception cases and the unfortunate foreign policy and constitutional ramifications of the statute as it stands. Part IV presents the background facts and procedural history of Iran v. Elahi. Part V explains the potential duty of the judiciary in applying scrupulous analysis to arrive at the “best” argument – the one contributing most fittingly to the development of the law. This Comment advocates that the common law will be better served if judges aspire to Dworkin’s Judge Hercules – a fitting ideal in the face of a “Herculean task.”

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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 0 This Article is brought to you for free and open access by Akron Law Journals at 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 - 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)


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Anneliese Gryta. A Herculean Task for Judge Hercules: Analytical Avoidance in Iran v. Elahi, Akron Law Review, 2008, Volume 41, Issue 1,