Above the Law COLUMN:
The families of two American contractors beheaded by al Qaeda in Iraq won a more than $400 million judgment against the government of Syria last week, but they would be lucky to collect a dime of it.
Foreign policy creates roadblocks to the families winning anything more than a judgment on paper.
Nevertheless, the families of Jack Hensley and Jack Armstrong sued under an exception to the Foreign Sovereign Immunities Act (FSIA). The two men were civilians hired by the U.S. government to assist in the rebuilding of Iraq.
FSIA is a 1976 law that grants immunity from lawsuits to foreign governments in U.S. courts, unless their actions fall under exceptions for commercial acts, terrorism and torture.
Before the law was enacted, sovereign immunity of foreign governments was a matter of discretion for each presidential administration. FSIA and its later amendments shifted more discretion to the courts.
Cases decided under FSIA have included a 1992 Supreme Court decision that the government of Argentina should be required to pay up after defaulting on bond payments to two corporations, a 2004 ruling that the Austrian government must return a painting stolen by Nazis in World War II and a 2008 decision that protected Saudi Arabia from claims by victims of the Sept. 11, 2001 terrorist attacks who say the Saudis helped finance al Qaeda.
It’s the torture and terrorism exceptions to immunity under FSIA that have brought a steady stream of lawsuits to U.S. District Court for the District of Columbia seeking compensation for murdered family members.
One of the biggest judgments was against the government of Iran. The families of Marines killed by the 1983 bombing of their barracks in Beirut won a $2.7 billion judgment.
The Iranians also were blamed for a 1996 terrorist attack in Saudi Arabia for which families of deceased Air Force members won a $254 million judgment.
Although FSIA allows courts to decide the cases, the money can be collected only if foreign governments agree to pay it or they own property outside their own country that can be seized by the courts.
So far, that has not happened.
Steve Perles, the attorney for the families of Mr. Hensley and Mr. Armstrong, is not giving up hope.
“Wherever they have assets anywhere in the world, we will go hunting,” Mr. Perles said.
Failing to enforce the court judgments against nations that sponsor terrorism sets a terrible precedent, he said.
“You just reinforce their bad behavior,” Mr. Perles said. “They stand there laughing at you.”
In the case of Mr. Hensley and Mr. Armstrong, “the state-sponsored terrorism exception to sovereign immunity applies” against the Syrian government, according to the U.S. District Court ruling.
Both men were kidnapped from their residential housing in September 2004, blindfolded, tied by their hands and feet, gagged and forced to their knees. In each case, a man read a political statement in Arabic as a camera filmed the murders for later posting on the Internet. Their remains later were recovered in different locations in Baghdad.
Witnesses testified during the hearing that the government of Syria assisted al Qaeda with munitions, training, sanctuary and financing. They also named names, such as Syrian intelligence officer Abu Moaz, who reportedly transported al Qaeda operatives to training camps.
Expert witnesses said insurgents were given free access to use the airport in Damascus, Syria, for transit to Iraq.
Damages assessed against the Syrian government covered economic loss of the families, pain and suffering of the deceased men while they were decapitated and punitive damages. It added up to more than $200 million for the families of each man. The family members declined to be interviewed for this story.
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