Terrorism Not Actionable Under ATCA: Judge Edward's Concurrence in Tel Oren Lives On

Saperstein v. Palestinian Authority
2006 WL 3804718 (S.D. Fla. Dec. 22, 2006)

In this case, Plaintiffs allege terrorism claims through the Alien Tort Claims Act against the Palestinian Authority ("PA") and the Palestinian Liberation Organization ("PLO"). Ramsey Clark and Lawrence Schilling represent the defendant organizations. Judge Seitz dismisses the complaint for lack of subject matter jurisdiction, holding that terrorism is not actionable under ATCA.

Judge Seitz discusses whether ATCA creates a cause of action against private parties accused of committing terrorism. She turns to the 1984 case from the D.C. Circuit, Tel Oren v. Libyan Arab Republic, 726 F.2d 774, in which Judge Edwards stated in concurrence that "the nations of the world are so divisively split on the legitimacy of such aggression as to make it impossible to pinpoint an area of harmony or consensus" and therefore terrorism was not yet a clear violation of international law.

Based on Tel Oren alone, Judge Seitz dismissed the terrorism ATCA claim:

To resolve Defendants' motion, it is necessary to determine if the Plaintiffs' TAC allegations fit the categories of conduct that prior courts have found constitute a violation of the law of nations, even when carried out by a private actor. The conduct in Tel Oren is substantially similar to the conduct in the present case. Judge Edwards, in Tel Oren, made it abundantly clear that politically motivated terrorism has not reached the status of a violation of the law of nations. In their own words, Plaintiffs describe Defendants' conduct as terrorism. Beginning with their introduction, Plaintiffs state that they bring this action for damages caused by Defendants' "acts of terrorism as defined in federal law, and by reason of related tortious terrorist behavior." (TAC at 2.) Further, Plaintiffs specifically allege that the PA and PLO failed to "denounce and condemn acts of terror, apprehend, prosecute and imprison persons involved directly, and/or indirectly in acts of terrorism and outlaw and dismantle the infrastructure of terrorist organizations. (Id. 67.) Thus, if the conduct of the Defendants is construed as terrorism, then Plaintiffs have not alleged a violation of the law of nations.

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Without commenting on whether the PA and/or the PLO should be construed as terrorist organizations, I find Judge Seitz's direct adoption of Tel Oren quite troubling and I think we will see more of this case. I believe there are numerous problems with this decision.

First, the world has changed significantly since 1984 when Tel Oren was decided. While there may have been doubt as to whether terrorism violation international law in 1984, numerous UN declarations, treaties against terrorism, statements of most nations of the world, NATO’s action in Afghanistan against terrorism, etc., all suggest that terrorism is now considered a violation of international law. While the second order question – how terrorism is defined – may be a live debate (and highly relevant to the outcome of this case), there are certainly “easy” cases where one may identify that terrorism occurred and that it violated international law. For example, the 9/11 attacks are widely recognized as acts of terrorism proscribed by international law. By bluntly adopting Tel Oren, Judge Seitz's opinion would seemingly deny recover under international law for even such horrific, clear examples of international terrorism.

Second, the internal U.S. law regarding terrorism has significantly changed since 1984. In 1992, Congress adopted a civil remedy for U.S. victims of terrorism and provided an operational definition for U.S. courts. 18 U.S.C. § 2331. Like the adoption of the Torture Victim Protection Act, the creation of a specific cause of action for terrorism with universal jurisdiction for U.S. citizens seems to confirm that Congress believes terrorism violates the law of nations and therefore the creations of universal civil jurisdiction is appropriate.

Finally, this opinion fails to analyze Tel Oren with respect to Sosa v. Alvarez-Machain. Clearly, Sosa sets the standard for courts seeking to determine whether specific norms of international law should be construed as actionable through the Alien Tort Claims Act. Sosa blessed CA2's holdings in Filartiga and Kadic allowing for private causes of action in the context of torture and genocide. However, Sosa never concurred with Judge Edward’s concurrence in Tel Oren. Therefore, before adopting Judge Edward's position regarding terrorism – which I argued above is likely no longer supported given the changed political and legal landscape in the last 22 years – the court must, at the very least, determine that Judge Edward’s analysis in Tel Oren comports with the Supreme Court's 2004 Sosa opinion. Such a review of Tel Oren in light of Sosa is noticeably absent.

Whether the Alien Tort Claims Act creates a private right of action for terrorism is perhaps one of the most pressing questions with respect to ATCA jurisprudence. While courts may weigh the international law evidence regarding terrorism and disagree, a court addressing this question seems obligated to review and evaluate the enormous changes that have occurred to international law in the field of terrorism since 1984.