Terrorism Lawyers See Motives Changing

It’s a small but growing specialty practice, lawyers who go after rogue nations for mega-million-dollar awards on behalf of victims of terrorism.

The State Department, and some legal scholars, worry that these lawyers are preying on the vulnerabilities of victims and their families, innocents who already have suffered the lashes of grief and pain. Moreover, critics argue, lawsuits against rogue countries complicate diplomatic efforts to pressure these nations into more civilized behavior.

The lawyers counter that they are litigating cases no one else has wanted--at least until recently--pursuing emotionally grueling and financially draining lawsuits against the likes of Libya and Iran because their clients’ needs have been ignored by the U.S. government.

For 200 years, U.S. law prohibited Americans from suing foreign countries. Angry at growing violence toward U.S. citizens, Congress made an exception six years ago for victims of state-sponsored terrorism by the countries on the State Department’s terrorism list--Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. That opened a floodgate of litigation, mostly against Iran for its support of Hezbollah and Hamas terrorists.

Now Congress is weighing a bill that would unlock certain frozen assets of Iran and Iraq, ensuring a payoff for some victims--and a boon to lawyers.

To pioneers in the field, the trend is oddly disturbing. “I’ve seen the motivations change, from the hearts of lawyers to the pocketbooks,” said Mark Zaid, who represents families suing Libya over the 1988 bombing of Pan Am Flight 103. “Now it’s just another personal injury claim. Anybody with $150 can file a lawsuit.”

And they have. Since Sept. 11, lawyers around the country have sued Afghanistan or Al Qaeda or Osama bin Laden, even though current law limits claims to the seven countries on the terrorism list.

Stuart Newberger, who won $42 million for former hostage Terry Anderson, disparages lawyers who bring suits against countries not on the list, thus putting victims through more torment. “Ambulance chasing is too good a [term] for some of these people,” he said.

But others in the terrorism bar believe that suing governments not on the list is precisely their job --pushing the legal envelope, prodding the political system to enact change. “If you feel strongly about a particular government, and you’re worried about time limits, shoot first and ask questions later,” said Aaron J. Broder, a New York lawyer handling some of the Sept. 11 cases, who recalls that Libya was sued by Pan Am Flight 103 victims’ families long before Congress changed the law. “File your lawsuit, then go to Congress.”

The complexity of the law--and the urge to keep amending it in Congress--ensures that most veterans in the terrorism bar are Washington lawyers. “You need someone who understands the legislative process,” said Steven Perles, who once worked for Sen. Ted Stevens (R-Alaska) and who has won some breakthrough cases in the field. “Without those skills, it’s like trying to run up Mt. Everest in your track shoes. You’re going to freeze.”

Alisa Flatow was a 20-year-old U.S. student visiting Israel in 1995. A suicide bomber detonated explosives. Her father, Stephen Flatow, a New Jersey real estate attorney, flew to Israel and took her off life support. The family donated her organs to Israeli patients, and looked for a way to punish the perpetrators, the Iranian-backed Islamic Jihad.

Steven Perles, a native of New England, was a familiar name in New Jersey, having won the longshot case of a U.S. citizen imprisoned in a Nazi concentration camp during World War II. By his own description, Perles used a political and legal pincers tactic: enlisting disabled war veteran and then-Senate Majority Leader Bob Dole (R-Kan.) and suing Germany’s four biggest corporations to force Germany to pay $25 million to Hugo Princz and 200 other U.S. survivors of Nazi camps.

Now Flatow asked him to “do to Iran what you did to Germany.”

What Perles did was mount an emotional case against Iran that brought the judge and several lawyers to tears. Then-Sen. Frank R. Lautenberg (D-N.J.) sponsored a bill to make an exception in the Foreign Sovereign Immunity Act for state-sponsored terrorism.

The bill’s success was helped by an equally gripping case in Florida. Cuba had shot down two private U.S. planes, funded by an anti-Castro group called Brothers to the Rescue, which scoured the Straits of Florida to help Cuban refugees find safe passage. Three U.S. pilots were killed. The families sued, eventually winning the largest payout so far: $97 million from frozen Cuban assets.

The new law unleashed a backlog of grievances. Verdicts started to pile up. The Flatows won more than $247 million. The family of Navy diver Robert Stethem, who was beaten and murdered during the hijacking of TWA Flight 847 in 1985, was awarded $321.4 million. Anderson, the former Associated Press reporter who was held hostage in Lebanon for more than six years, won $341 million.

But collecting was difficult. The United States had no diplomatic relations with the countries, which for the most part did not defend themselves in court.

Congress authorized using frozen assets to pay some specific victims--the Flatows got $26 million, Anderson got $47 million, Stethem soon will get $27 million--but in fact the money came largely out of a U.S. account earmarked for Iran’s military purchases. The U.S. government put a lien on the funds and paid the award itself, leading some to question its efficacy. Lawyers like Zaid want Libya to hurt, not U.S. taxpayers.

Other victims were left out entirely. The current legislation seeks to free assets for victims of Iran’s terrorism who were omitted, and Iraq’s, who never were included.

The Bush administration is arguing instead for Congress to set up a compensation fund to give victims of terrorism the same benefits provided firefighters and police officers, as much as $250,000 per family. Such a fund has kept most Sept. 11 victims from filing lawsuits.

The current approach, the State Department says, encourages “a race to the courthouse by victims” and competition for “a scarce pool of resources.”

And the awards are so large that they are producing lawsuits of their own. Perles, for instance, is being sued by a former legal assistant who says she did much of the work on his big cases and wants one-third of his $9-million contingency fee.

From a top-floor office overlooking the Capitol, just a block from FBI headquarters, Stuart Newberger presides over the only full-fledged terrorism unit at a major law firm.

With two partners and 20 associates, Newberger has the largest roster of terrorism clients in town--from the 11 families whose relatives were killed by a bomb at the U.S. Embassy in Kenya in 1998 to the family of Malcolm Kerr, president of the American University in Beirut, who was assassinated in 1984.

The team is high-powered. Karen Hastie Williams, who clerked for the late Supreme Court Justice Thurgood Marshall and whose father, William Hastie, was the first African American to be named a federal appellate judge, handles legislation. Michael Martinez, a graduate of Boalt Hall School of Law, tracks a database of the cases on a weekly basis. Recently, Beth Nolan, former White House counsel to President Clinton, joined the team.

Newberger’s favorite expression is “getting in the game,” and he loves the mix of politics and prosecution that sustains the city’s legal community. A former assistant U.S. attorney in the District of Columbia, he is an expert on the Freedom of Information Act; he won declassification of the Kennedy-Khrushchev correspondence.

Because his team seeks only to bring cases that have a chance of success, Newberger said he was especially disappointed by a case brought on behalf of U.S. diplomats held hostage by Iran for 444 days in 1979-80. U.S. District Judge Emmet Sullivan dismissed the case, saying that the Algiers Accords, which ended the hostage crisis, expressly relieved Iran of liability. Sullivan blasted the lawyers who brought it for “repeated ethical failures,” such as neglecting to mention the Algiers Accords.

“We believe the judge is flat wrong,” said Terrance Reed, one of the diplomats’ attorneys. Predicting eventual victory, perhaps with Congress’ help, Reed said, “We have a long road, and Judge Sullivan made it longer, but you cannot ask for more worthy clients.”

Edwena Hegna has been waiting for 18 years. Her husband, Charles, who worked for U.S. AID, was a passenger on Kuwait Airlines, going from Yemen to his base in Pakistan, where he planned to pack and head home for the Christmas holidays in 1984. Terrorists hijacked the plane, then asked if anyone on board was an American. Chuck Hegna stood up.

They shot Hegna and threw his body on the tarmac at Mehrabad Airport in Tehran. Two days later, as an ambulance approached, one of the terrorists saw Hegna twitch, and shot him again--fatally.

Ralph Dupont, a lawyer in New London, Conn., was involved in the case even before the hijacking ended. He was a family friend to another passenger, Hegna’s fellow AID worker, William Stanford. The hijackers forced Stanford to the top of the plane’s steps to plead for their demands. Then they shot him dead. At his funeral, Stanford’s widow introduced Dupont to Edwena Hegna.

“My whole family has been devastated by this,” said Hegna, who was 42 years old with four children when the hijacking occurred. Her oldest children were grown; her youngest son was 17. “He was the one who came home every day to find his mother crying and wondering what there was to live for. He was the one who admitted his mother to a mental institution. What a price to pay, for a child to have to endure this responsibility.”

Hegna said she often has pondered why her husband volunteered that he was American. “Maybe history might have been different if Chuck had sat in his chair and said nothing,” she said. “But my husband wouldn’t do that.... When we lived overseas we were never the ‘ugly Americans.’ I keep wondering, what was Chuck’s reward for being the good American?”

The Stanford family has dropped its case. Hegna says she will pursue hers until she dies. Dupont was back in court recently, trying to wrest the Hegna family’s $42-million award from Iran’s frozen assets. U.S. District Judge Henry Kennedy Jr. ruled that Congress “made a grievous error” in deciding which victims get paid and which do not.

Mark Zaid worries that the terrorism bar’s very success is changing its character, and has stopped taking cases.

He came to terrorism cases in law school. At Albany Law School of Union University, he knew two of the 240 passengers killed aboard Pan Am 103 who were coming home from a semester serving as interns in the British Parliament. He had completed the program the semester before.

Zaid has a seeming attraction to long-shot cases--he tried unsuccessfully to have John Wilkes Booth’s body exhumed and represents Mohamed Al Fayed in a suit seeking U.S. documents that he says would prove Fayed’s son, Dodi, and Princess Diana were murdered by British intelligence. And he is not the only attorney handling the Pan Am 103 case--some families have hired the New York firm of Kreindler & Kreindler.

But he is a believer. “There is nothing wrong with getting money, but that’s not why I pursued the case,” he said. “If we, as attorneys, don’t collect a dime, it will have been worth it, just to punish Libya.”

Anne-Marie Slaughter, a Harvard University law professor, has a problem with what she calls “plaintiff’s diplomacy.”

While faulting neither the lawyers nor their clients, she argues that litigating victims’ compensation makes bad foreign policy. The Flatow decision, she said, came down just as Iranian President Muhammad Khatami was trying to consolidate his pro-reform policies, making reform a harder sell.

The State Department argues that it needs the frozen assets to pressure rogue regimes into correcting their histories. It warns that other countries may someday reciprocate and attach U.S. assets.

“Using blocked assets would preclude their use to pressure regimes to improve their policies on terrorism,” Deputy Secretary of State Richard Armitage wrote in a recent letter to lawmakers.

Ron Kleinman, a lawyer who helped win the Brothers to the Rescue case, agrees that litigation is hardly the best way to conduct foreign policy. But he is outraged at the suggestion the State Department is protecting U.S. interests.

“For 18 years the State Department hasn’t been able to use those assets to stop terrorist states,” he said. “The professors are absolutely correct. I wish this weren’t necessary. But if the State Department is not going to protect the victims, we are.”