The issue of liability for terrorism and supporting terrorism in American domestic courts is one of the most active issues of current judicial decisionmaking in the area of foreign affairs. Through the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act and the Alien Tort Statute, liability extends to foreign governments (in the FSIA context) and to foreign governments, nonstate actors, or nonstate actors acting under color of law (under the ATS) when they provide support to terrorist activities.
In an October 2007 decision, the Second Circuit Court of Appeals in the Khulumani case held that a defendant is liable through aiding and abetting liability under international law when the defendant 1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and 2) does so with the purpose of facilitating the commission of the crime. Although the state-sponsored terrorism exception to the FSIA and Alien Tort Statute impose an aiding and abetting liability standard, courts have construed both quite differently. In the FSIA context, courts such as the Fourth Circuit Court of Appeals in the Rux v. Republic of Sudan case have embraced a relaxed aiding and abetting liability standard, resembling a strict liability standard. This standard applies in cases where a foreign defendant has allegedly materially supported acts of terrorism, and also collapsed the knowledge and intent requirements for aiding and abetting liability into a single judicial inquiry – whether a State “materially supported” the action in fact, irrespective of knowledge or intent. However, under the Alien Tort Statute, in the 2007 Eastern District of New York Almog decision the Court adopted a clear two-step inquiry of an actus reus and mens rea prong of determining aiding and abetting liability.
In this essay, I propose that in cases involving terrorism or terrorist activities, courts should employ a two-step judicial inquiry: first, an actus reus component of whether a State gave “substantial material support” to terrorist activities in cases falling under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act, and with the Alien Tort Statute, cases when a nonstate actor, foreign government, or nonstate actor acting under color of law aids and abets an organization which commits terrorist attacks and activities. Second, a mens rea component would question whether the actor knowingly acts that facilitates the commission of terrorist activity. To adopt such an inquiry not only best effectuates the objects and purposes of both statutes, but gives the Judiciary a vibrant role in addressing the worldwide war on terrorism.
Available at: http://works.bepress.com/chad_marzen/7/