While on the subject
of the extraterritorial application of state laws, a federal district court in Washington D.C.
this week rendered an important and puzzling decision applying state tort laws to combat terrorism abroad.
The case of Damarrell v. Iran
concerns the Iranian government’s involvement in the Beirut
embassy bombings of 1983, one of the defining moments in the modern era of terrorism.
As the court correctly notes, “the bombing was the first large-scale attack against a U.S.
embassy anywhere in the world.”
The claims were brought against Iran and its intrumentalities pursuant to the Flatow Amendment of the FSIA. Recent D.C. Circuit opinions in Cicippio-Puleo and Acree ruled that the Flatow Amendment, while a valid exception to the FSIA for terrorism claims, does not itself create a private right of action. In response, the district court in Dammarrell authorized the claimants in this case to amend their complaint to plead specific causes of action under the common law or statutes of their respective home states.
This week the court in Dammarrell ruled that the claimants were entitled to $126 million against Iran. But it did so on the basis of state tort laws for wrongful death, battery, and the intentional infliction of emotion distress. That’s right, the state tort laws of Georgia, Florida, North Carolina, New York, Texas, Virginia, and the District of Columbia were applied extraterritorially to combat terrorism in Beirut. Notably absent from this decision, or any other Dammarrell decision, is the word “extraterritorial.” There was absolutely no discussion of the presumption against extraterritoriality for this patchwork of state tort laws.
I am a strong advocate of using U.S. courts to fight state-sponsored terrorism against the United States and U.S. citizens. I therefore welcomed the Flatow Amendment. But it seems odd, to say the least, that we are applying state tort laws for battery, wrongful death, and emotional distress to combat terrorism in Beirut. If we can use those laws to combat terrorism, what prevents their use in others contexts for lesser evils? If a soccer hooligan violently assaults an American at a Chelsea football game in London, is that cognizable too? If not, why not under Dammarrell? It would seem that relying on the antilogy of this decision, every American tourist abroad is a walking vehicle for the potential application of their state tort laws against anyone anywhere who commits an intentional tort against them. Now that’s what I call tort reform.
One can hardly fault the claimants, as it appears the court previously instructed them to amend the complaint to include state law causes of action. But if the Flatow Amendment does not create a private right of action, and state tort laws do not evince a legislative intent to be applied extraterritorially, what are claimants to do? The court earlier this year had ruled here and here that the TVPA does not apply to foreign states and there is no federal common law private right of action. And, of course, the ATS cannot be invoked by American citizens.
It seems odd to say, but Americans still have no obvious statutory basis for a private right of action to combat state-sponsored terrorism abroad. State tort laws will (or should) have difficulty overcoming the presumption against extraterritoriality, and all federal causes of action appear wanting. I always hate it when academics blithely suggest amending statutes, but perhaps the only obvious (but unlikely) solution is a legislative override of Acree and Cicippio-Puleo, or an amendment to the TVPA to address this most egregious form of state-sponsored extra-judicial killing.