Imagine You’re the President
Imagine you are the first President of a brand-new nation – EthicsBlogAStan. Congratulations! It was a hard-fought election, but you prevailed. And, at least the Russians didn’t meddle. Is it too soon for that joke?! You have millions of people in your new nation and so you need many government workers to do government things like train in a military, run social service programs, operate post offices, etc.
To grow and sustain your economy, you also need to interact with other nations. Peaceful relationships with foreign governments (especially the nearby ones and the powerful ones) are going to be critical to your prosperity. With this in mind, you would send ambassadors and other officials to live in those nations, lobby for policies you prefer, and conduct business on your behalf. This means that you need assets in those nations to support your people. For example, you would need to secure places for them to live, provide diplomatic vehicles, and purchase other equipment. You would also need to set up bank accounts in the foreign land, so your people could undertake their tasks more easily.
Over time, you would not just send government officials abroad. You might also want to garner some goodwill with a foreign government by, say, sending over cultural items. Perhaps you would loan famous / exotic works of art to foreign museums. These could serve as a sign of friendship between your two nations. You would want them back, to be sure. And, you would be furious if the government you gave them to took them from you for any reason – even if its courts believed there was a legal reason to do so.
On the peace front, hopefully everything would be calm and remain that way. But, over time, people tend to fight, and tensions ebb and flow. People from different nations often fight more bitterly solely because they are from different nations. Cultures are diverse and self-interested actions / policies often clash when it comes to foreign relations. Add to these tensions the fact that the people you send over to the foreign land will likely break the law from time to time. Think about the potential for traffic accidents, assaults, and other crimes / civil violations. It’s bound to happen – you are going to have people all over the globe. This is less of a problem in peaceful times as your State Department can talk it out with their State Department. As tensions around the globe rise, however, it becomes harder and harder to talk. Things get tougher. Diplomacy starts to matter more.
In these tough times, a critical question becomes whether foreign courts should be able to issue judgments against your officials when they act unlawfully. Should this occur even though it might seriously damage the relationship between your two nations? Should you proceed in a similar manner in your courts?
There is also a chance that you will do something in the world that angers or hurts a foreign government or its citizens. What if, for example, a group of United States citizens sues you in Washington D.C. for something that happened in the Middle East? Assume it was a terrorist bombing that these plaintiffs thought you helped cause.
What if the American government allowed that lawsuit to proceed? And, what if the plaintiff / victims won in court? Would an American judge be allowed to seize your assets within the U.S. to pay for the judgment against you?
If your assets are not legally immune from seizure, you would be furious. You would consider this is violation of your sovereign property, a form of theft. You wouldn’t want courts in foreign lands deciding whether you – as a sovereign government – violated the law. That is for your courts to decide, right? On the other hand, if your assets are legally immune from seizure, the plaintiffs who won the case would be furious. They have a legal judgment in hand saying they were wronged under U.S. law. They want their $$$.
This sounds like an intractable problem. And, it really is.
Sovereign Immunity
In the end, it would all come down to whether the foreign government made your country’s officials and their property immune from legal judgments. Immunity is a legal concept that shields a party from the consequences of a lawsuit. Nations across the globe have come to the conclusion that granting immunity to foreign officials – and angering injured citizens in the process – is the best diplomatic policy. So, they tend to grant what is called sovereign immunity to foreign officials. Nothing requires them to grant this immunity, mind you. The concept has developed as a matter of courtesy and diplomacy. It’s a way for nations to become and stay friendly.
Some countries recognize how severe a burden this places on citizens injured by a foreign government or its officials. So, many nations provide exceptions to a grant of immunity. This means that, in some cases, wrongful actions by foreign officials will expose these officials and their government to legal liability. But, please keep in mind that those exceptions are few and far between.
The question in our case – Rubin v. The Islamic Republic of Iran – is whether one of these immunity exceptions (under U.S. law) allows for the seizure of priceless Iranian art held by a University of Chicago museum. In other words, does U.S. law allow for sovereign property to be seized to satisfy a judgment against a foreign government for supporting terrorism? This case is interesting because it lies at the intersection of international law, diplomatic relations, justice for injured victims and their families, terrorism in the Middle East, and immunity for foreign governments accused of sponsoring terrorism. Let’s dive in.
A Tragedy in Jerusalem
On September 4, 1997, three suicide bombers walked into a crowded pedestrian mall in Jerusalem. The explosions – caused by homemade bombs laced with nails – killed five people (including three teenaged girls) and injured hundreds of others in the vicinity. The center of the mall was destroyed, windows were shattered, and chaos ensued. The terrorists left a leaflet at the scene which stated that the militants were from Hamas and that the violence would continue until Israel freed certain political prisoners. Israel responded by closing the entire Gaza Strip and West Bank which prevented Palestinians from entering Israel for any reason. Tensions were high and remain so today. Unfortunately, this was only one tragedy of the many that have exacerbated the broken relationship between the Israelis and Palestinians.
A group of United States citizens then sued the Islamic Republic of Iran for the injuries and deaths sustained in this awful attack. These plaintiffs were either injured at the scene or family members of people who were injured or killed in Jerusalem that afternoon. They chose to sue Iran under the theory that the Iranian government both (1) financially supported and (2) trained Hamas. Their argument boiled down to: these deaths and injuries happened with the help of the Iranian government and, therefore, the Iranian government should also be held liable. They asked for a lot of money to compensate for their severe losses. These arguments bumped up against the immunity that the United States grants to the Republic of Iran and to Iranian property located in our country. This was going to be a heated legal battle and it would come down to whether U.S. law granted immunity to Iran for its actions.
Should Iran Pay?
Immunity for Foreign Governments
A key point to keep front and center here is that the U.S. government need not grant immunity to foreign officials or their property. Recall that immunity is generally granted as a matter of grace and diplomacy, not because it’s legally required. We grant immunity in an effort to ensure that American officials are treated kindly abroad. So, we strive to treat foreign officials kindly here. But, there is nothing in the United States Constitution requiring any grants of immunity to other nations. That means that our government can take away sovereign immunity whenever it chooses.
So, an American judge could, theoretically, order foreign property located in the U.S. to be seized to satisfy a legal judgment. That would disrupt diplomatic relations, to be sure. This is why, historically, courts have struggled when these cases arise. Many judges want to provide a legal remedy for injured Americans but also recognize that the political branches – Congress and the President – should determine how to act in cases involving foreign governments. These elected officials are better positioned to address these issues of diplomacy – they have more experience and are more accountable – than are unelected federal judges.
And so, the political branches have stepped up to make some important decisions in this area. The U.S. State Department has generally taken the lead since its primary duty is diplomacy. Until the 1950s, the State Department held the position that foreign governments were entitled to complete immunity in United States courts. This meant that foreign governments could potentially get away with a lot of unlawful activity and be completely protected. The courts did not have to abide by this policy (it’s a sepration of powers issue for another post), but judges do tend to grant deference to government agencies as the experts in the area.
In the 1950s, things began to change. Foreign governments became more active in commercial enterprises abroad. Therefore, State Department officials began to change their official position on immunity when it came to lawsuits involving foreign governments who were conducting commerce. Picture entities such as a state-owned bank or a state-owned manufacturing entity doing business in the United States. In these cases, the arguments for immunity weakened. Public policy shifted to allow courts to decide fault in commercial cases while leaving immunity intact in cases involving political acts of foreign nations.
Congress tries to add clarity
In 1976, Congress decided to strike an official balance in this area. No more informal State Department policies. Legislation was passed that provided near blanket immunity to officials of foreign governments with limited exceptions. These exceptions were based on the policies developed in the 1950s. This law is called the Foreign Sovereign Immunities Act or FSIA. You’ve likely heard of it. Three of the most relevant FSIA exceptions involve commerce and terrorism:
- The Commerce Exception – Foreign nations conducting commerce abroad are not necessarily immune from lawsuits. The idea is that the foreign government has moved away from its traditional government functions and taken on a more commercial posture. And, because the entity is not really acting like a sovereign nation anymore, the reasons for granting immunity become weaker.
- The Terrorism Exception – This exception covers instances where: (1) a foreign government has been designated a “State Sponsor of Terrorism” by the United States government and (2) the plaintiff’s claim arises from an act of terrorism. That makes sense, right? Foreign governments have immunity in the United States unless then are deemed to: (1) be really bad actors and (2) find themselves accused in court of doing really bad stuff related to terrorism.
- The Property Exception – The FISA also provides also immunity for the property of foreign governments located within the United States. This means that foreign property is protected from seizure by plaintiffs who have secured a legal judgment. However, there are limited exceptions to this immunity such as when that property is being used for commercial purposes.
Now That Your Head Is Spinning . . .
Back to the Case
In our case, the “Terrorism Exception” subjected Iran to the jurisdiction of a United States federal court. The country was deemed a State Sponsor of Terror and the plaintiff’s claim related to terrorism in the Middle East. These two things, in combination, meant that this exception clearly applied. The plaintiffs’ lawsuit could proceed.
The problem was that the Iranian government disagreed. They failed to send a delegation to the courthouse to even defend against the claims. When this happens in a legal case, a judge issues what’s called a “Default Judgment” against the no-show party. This means that the plaintiffs win without a fight. No witnesses or evidence need be presented. The case is over, the defendant loses.
This reminds me of what my high school classmates used to say whenever one of us got a speeding ticket. “Well, just pray that the cop doesn’t show up to court and you’ll win.” I’ve come to realize that it’s not quite so simple in traffic court. The cop is just a witness, but the party against you is the government. And . . . someone from the government always shows up to traffic court – at least that was my experience.
In Rubin, however, the defendants did not show up at all to defend themselves. Picture an empty defendant’s table in an otherwise packed courtroom. This strategy takes guts for any defendant. Here, it took far more than just guts. It’s important to remember that the defendant here is the Islamic Republic of Iran – perhaps America’s greatest antagonist. This means that the stakes were even higher than for the typical wrongful death and injury case. International diplomacy and peace issues stand front and center in these types of cases. And, it’s not just Americans and Iranians who are interested in the outcome – it’s the whole world.
The default judgment here meant that Iran was liable to each of the victims in the case. The amount came to $71.5 million in damages. Just let these numbers and the circumstances sink in! Over $70 million payable by the Iranian government to American citizens.
Perhaps it won’t come as a surprise that Iran did not pay by the deadline. Angry, the victorious plaintiffs filed new lawsuits across the nation – this time as creditors trying to collect their debts. They wanted to seize money from Iranian bank accounts. When that didn’t work, they tried to seize historical artifacts belonging to Iran located in museums throughout the United States.
The lawsuit relevant here is one was filed in northern Illinois. Why northern Illinois? Because the Iranian government had long ago (like 80 years ago) lent the University of Chicago a collection of very old and very rare clay tablets. There were around 30,000 of them included in the deal. These artifacts were excavated from the ancient city of Persepolis in the 1930s and contained some of the most ancient writings ever discovered. Like any meaningful and rare work of art, this collection was important to Iranian culture and likely priceless.
The Case to Seize the Tablets
The plaintiffs made bold legal arguments in an attempt to seize the artifacts. They read FSIA broadly and claimed that:
- Immunity does not apply to Iran’s property because: (1) Iran was designated as a state sponsor of terror and (2) the bombing was an act of terror. This meets the FSIA’s requirements allowing for an exception to immunity from lawsuits for foreign governments. Therefore, because the Terrorism Exception applies to the lawsuit, it also applies to Iran’s property in America. In cases like this, victorious plaintiffs may seize property of foreign governments to help recover what they are owed.
- With this established, a judge may require the University of Chicago to turn over some of these artifacts. The plaintiffs would then auction off as many tablets as it took to be paid in full.
At this point, the Iranian government (. . . finally) entered the picture. The lawyers for Iran argued that:
- FSIA immunity did indeed apply to this property. The plaintiffs are wrong about that.
- The FSIA exceptions to seize property are narrow. FSIA only exempts property from immunity when it is used for commercial purposes by the foreign government itself. And here, the property is being used / displayed by an American entity, the museum, not by the Iranian government.
- These artifacts had nothing to do with the bombing in Jerusalem. Therefore, the property is completely unrelated to the act of terror.
- Though the legal judgment against the country may stand because of FSIA’s Terrorism Exception, the winners of such a lawsuit cannot just seize any Iranian property located in the United States. They need a separate FSIA exception for that and none is applicable here.
The federal courts in Illinois agreed with . . . (drumroll) . . . Iran. On appeal, a panel of three judges found that the plaintiffs read the FSIA too broadly. When it comes to property of a foreign government, they held, the law requires a separate exception. Without a separate exception, the property defaults back to being immune from seizure. And, because no separate exception exists in this case, the property may not be seized. The plaintiff’s legal victory stands. But, it does not entitle them to use these artifacts to satisfy their judgment against Iran.
The plaintiffs then appealed to the court of last resort – the Supreme Court of the United States.
The Supreme Court Decision
So, who do you think should win? Who has the better legal argument? We will get to ethics of all of this in a second. This month (February 2018), the Supreme Court ruled and unanimously agreed with Iran.
The decision is written by Justice Sonia Sotomayor. Here’s a note for the nerds in the audience (the rest of you can skip it): the vote was only 8-0 because Justice Kagan did not participate. In legal mumbo jumbo, she was “Recused.” This is likely because she worked on the case at her last job as the United States Solicitor General. The SG – as it’s known – is appointed by the President to represent the United States as its lawyer in front of the Supreme Court. The justices don’t tell us why the recuse themselves, so we just have to guess. In this case, it didn’t really matter because of the unanimous vote. If Justice Kagan had participated, the vote would have been either 8-1 or 9-0 in favor of Iran.
The justices agreed with the lower courts in Illinois. The priceless artifacts were Iranian property. But, they were not being used by the Iranian government for commercial purposes. This meant that the FSIA exception from immunity for property did not apply. The justices then applied a narrow reading of FSIA and its amendments to hold that plaintiffs must find an applicable exception in the statute in order to seize property. It is not enough that they hold a judgment from a lawsuit against a nation deemed a State Sponsor of Terror. In other words, there must be an independent exception from immunity in the text of the law in order for the property to be seized. And, there is no such applicable exception here. In short, the justices agreed with the opinion of the federal appeals court, meaning its decision was Affirmed.
Was the Legal Outcome correct?
In the end, these plaintiffs will have to try other means to collect their debt from Iran. My guess is that they will have a tough time because of how strongly FSIA protects foreign governments and their property. As you might be able to tell, I am not a huge fan of total immunity for foreign officials / property. To me, if you commit a crime this serious in a foreign land or against a person from that foreign land, you should be held accountable in that country. Judgments rendered against you in a fair manner should not result in a worthless pieces of paper.
I do see the point that one country could use its courts to inflict pain on another country for political purposes. But, I would hope that wouldn’t happen too often (or at all) under our judicial system in the United States. Another problem for me is that blanket immunity for foreign officials is also likely to encourage them be more reckless than they would be without immunity. If they know they cannot be punished, their actions are likely to reflect that freedom. Lines are more easily crossed in these circumstances. I think we should move to a balancing test that favors immunity but where the grant of immunity is not a slam dunk. We can trust our courts to make these calls.
In the end, even though I am not a big fan of sovereign immunity, it seems like this case did come out correctly under the law as it stands today. The FSIA is meant to broadly grant immunity and the plaintiffs were asking to pare that immunity back in a significant way. This is something that Congress has been reluctant to do. But, it’s not the job of the Supreme Court to amend the FSIA to protect victims of a horrific attack. The legal outcome of this case was predictable, which likely explains the unanimous decision.
The Ethics Angle
With the legal stuff out of the way . . . finally, let’s get to the ethical analysis. I find the ethical dilemmas posed by this decision to be much harder. Let’s wrestle with some key questions right off the bat. Then, we can evaluate the decision using some prominent ethical frameworks.
Three Key Ethical Questions
- Interestingly, the United States government sided with Iran and against its citizens in this case. That’s a sentence that isn’t uttered all that often. The Executive Branch went as far as to file a legal brief urging the Supreme Court to agree with the federal courts in Illinois. And, as we’ve seen, that is exactly what happened. The United States’ argument was along these lines: (1) yes, this attack was awful, (2) and yes, we feel deep sympathy for these plaintiffs / victims, (3) however, foreign relations with Iran would become even harder if you interpret the FSIA to allow these antiquities to be seized under these facts. Here is a direct quote from the government’s brief:
“Although the United States agrees with [Iran] that the court of appeals correctly resolved . . . the case, the United States emphatically condemns the terrorist actions that gave rise to this case, and expresses its deep sympathy for the victims and their family members who have pursued legal action against Iran. The United States is committed to vigorously pursuing those responsible for violence against U.S. nationals.”
What do you think about that? Do you think our government will “vigorously pursue” Iran to provide damages to these victims of a decades-old bombing?
- If you were the hypothetical King / Queen of the United States what would you do? Let’s assume you don’t have to worry about checks and balances, political negotiations, or getting re-elected. It’s an interesting thought experiment. Would you seize the artifacts from Iran so that these plaintiffs could collect their judgment? Is that fair? Would you care if it was fair? What if Iran became really upset with your decision and threatened you and other Americans within its sphere of influence? How much would you consider diplomatic relations in this case?
- Are you at all troubled by the fact that these plaintiffs are willing to auction off these priceless pieces of history to collect their money? I know they are owed a ton of cash, but is this the morally best option? Who knows where many of these tablets might end up. There is a chance that some go to private collections never to be seen by the public again. Remember, these tablets contain some of the oldest writings in the history of the world! Is it fair for these to be privately owned? Are you okay with having someone potentially store them in a basement or a garage or even destroy them? Do you think this angle influenced any of the court decisions? Should it have?
Now, let’s briefly run the Supreme Court decision though the ethical lenses of: (1) Utilitarianism (greatest good for the greatest number), (2) Deontology (doing things for the right reasons and considering the dignity of others), and (3) Virtue Ethics (acting in accordance with key virtues and avoiding their extremes). I conclude that the decision fails two of the three. I grade each one – pass / fail – below. Let’s see what you think.
- Utilitarianism (PASS) – I think it’s clear that the near absolute immunity policy for foreign officials fulfills the greatest good for the greatest number of people requirement. Having friendly and peaceful diplomatic relations with foreign governments will surely help more people than the opposite policy. Think about how many people are affected daily by our relationships with foreign governments. The number is in the hundreds of millions if you think about international trade, peace, travel, etc. If the decision were reversed, perhaps a dozen or so people would be helped greatly. while these hundreds of millions stand to be worse off. Therefore, from a Utilitarian perspective, the Supreme Court’s decision is ethical.
- Duty Ethics (FAIL) – When looking at this framework, however, things change quickly. If your top ethical concern is the inherent dignity of people, I think this case came out wrong. Iran did not run to court to argue its innocence in this terrorist attack. In fact, the Iranian government didn’t deny involvement in the public record at all. Iran lost in court fair and square. There is no doubt that they victims of the horrific bombing experienced serious pain and agony. And, they will likely receive nothing in the end – even with a legal judgment in hand. How does this outcome respect their dignity? Also, this theory does not allow you to look to the future consequences of your actions to decide what is morally correct. In fact, the means by which you come to your decisions are far more important. Perhaps, if the Supreme Court ruled in favor of the plaintiffs, the Iranian government would have forked over the $71 million in lieu of seeing their property auctioned off. Or, perhaps diplomatic relations would become even worse than ever. We will never know – and that’s the point this theory makes. Since the future is uncertain, control what you can – your decisions. In conclusion, I think it’s clear that this decision failed to respect the dignity of these victims and is, thereby, unethical from a duty perspective.
- Virtue Ethics (FAIL) – This theory posits that you should act virtuously in all that you do. This means that you need to avoid vices (envy, greed, etc.) as well as the extremes of any given virtue (impatience, cowardice, etc.). So, the idea is to be honest while avoiding bluntness or lying. Be compassionate, not a jerk or a doormat. This decision has many failings on the Virtue Ethics front. Here are a few of the virtues that the decision contradicted:
- Accountability: as of February 2018, no one has been held legally accountable for the injuries and deaths stemming from the bombing. A piece of paper saying that the plaintiffs won is hardly fair compensation for what they and their families have been through. This lack of accountability is a big no-no under Virtue Ethics.
- Compassion: let’s face it, these plaintiffs are now SOL. The FSIA protections of foreign property are just too strong for people to collect on these types of judgments. The law isn’t always compassionate, and I am not sure it needs to be all the time. Think about big corporate mergers and stuff like that. However, in these individual damages cases with serious injuries intentionally inflicted by another party, I would hope for a bit more compassion from the law. It’s odd from a compassion standpoint to win a legal judgment of $71 million and then be unable to collect any of it because the people who hurt you are government officials as opposed to normal citizens. That seems backwards. The government officials are the ones backed by all the money. It’s even worse that these government officials have assets in the United States that could help make this right, but those assets are off limits for diplomatic reasons. This feels cruel, a deficiency of compassion.
- Justice: this one speaks for itself. Injustice is an inherent reality of laws like the FSIA. As I described in the section on Utilitarianism, justice for individuals will be scarified for the greater good when it comes to diplomacy. That rationale usually doesn’t fly in Virtue Ethics. And, it doesn’t fly here. Not enough justice was provided to the victims in this case.
The Supreme Court decision in Rubin v. Iran fails two of the three key ethical frameworks. Remember, this does not mean the Supreme Court got it wrong. In fact, I think they got it right under the current state of the law. This also does not mean that the Supreme Court acted unethically. The justices constitute a legal tribunal and need not look at any case through these ethical angles. But, Congress and the President can and should. In fact, the Legislative and the Executive branches should consider both the legal and ethical scope of all public policy issues. That’s a clear part of their job description. I want my elected officials pondering Utilitarian, Duty, and Virtue based outcomes. And, as they do this, perhaps it’s time that the concept of near blanket immunity covering the property of foreign governments be reexamined. This is especially true in cases where American citizens have suffered greatly from terrorist attacks funded by foreign governments.
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