The opinion of the court was delivered by: LAMBERTH
This is an action for wrongful death resulting from an act of state-sponsored terrorism. Defendants have not entered an appearance in this matter. This Court entered Defendants' default on September 4, 1997, pursuant to 28 U.S.C. § 1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding indicia of Defendants' willful default,
however, this Court is compelled to make further inquiry prior to entering a judgment by default against Defendants. As with actions against the federal government, the Foreign Sovereign Immunities Act ('FSIA") requires that a default judgment against a foreign state be entered only after plaintiff "establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e); see Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996).
Plaintiff brings this action pursuant to two recently enacted amendments to the FSIA, which grant jurisdiction over foreign states and their officials, agents and employees, and create federal causes of action related to personal injury or death resulting from state-sponsored terrorist attacks. Given these novel enactments, and this Court's special role in the development of foreign sovereign immunity jurisprudence, see 28 U.S.C. § 1391(f)(4), this Court has engaged in a systematic review of dispositive legal issues prior to making its determination that Plaintiff has established his claim and right to relief to the satisfaction of this Court.
This matter came before the Court for an evidentiary hearing on March 2-3, 1998. The Plaintiff proceeded in the manner of a nonjury trial before the Court and the following findings of fact are based upon the sworn testimony and documents entered into evidence in accordance with the Federal Rules of Evidence. Plaintiff has "established his claim or right to relief by evidence that is satisfactory to the Court" as required by 28 U.S.C. § 1608(e). This Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding:
1. Plaintiff Stephen M. Flatow, a domiciliary of the State of New Jersey, is the father of Alisa Michelle Flatow, decedent, and is also the Administrator of the Estate of Alisa Michelle Flatow. He brings this action in his own right, as Administrator of the Estate of Alisa Michelle Flatow, and on behalf of decedent's heirs-at-law, including Rosalyn Flatow, decedent's mother, and decedent's siblings, Gail, age 21, Francine, age 18, Ilana, age 16, and Etan, age 14, all decedent's siblings. Affidavit (Exhibit 2) (Exhibit 2) and testimony of Stephen M. Flatow.
2. Alisa Michelle Flatow was born on October 5, 1974 in the United States. She maintained her United States citizenship throughout her life, and was a United States citizen at the time of her death. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; Report of the Death Of An American Citizen Abroad (Exhibit 9).
3. At the time of her death, Alisa Michelle Flatow was a twenty-year-old Brandeis University student. For the 1995 spring semester, her junior year at Brandeis University, Alisa Michelle Flatow arranged for and participated in an independent foreign study program in Israel. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; testimony of Dr. Jonathan Sarna; testimony of Alan Mitrani; testimony of Lauren Sloane; testimony of Gail Flatow; testimony of Francine Flatow; decedent's academic records from Brandeis University.
4. While in Israel, she communicated with her father, Plaintiff Stephen M. Flatow, to ask whether she could travel to a community on the Mediterranean Sea with friends. He reviewed their itinerary with her, and as he believed that the Israeli government would not provide civilian passenger bus service unless it were safe to do so and he gave her permission to travel in Gaza. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow.
5. On April 9, 1995, decedent Alisa Michelle Flatow was a passenger on the number 36 Egged bus, which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community. Testimony of Kesari Rusa.
6. At or about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus. Testimony of Kesari Rusa; testimony of Orit Taft; testimony of Ezra Mordecai testimony of and videotape by David Shaenbaum; U.S. DEP'T OF STATE, PATTERNS OF GLOBAL TERRORISM 1995 (April 1996).
7. As a result of the explosion, a piece of shrapnel pierced Alisa Michelle Flatow's skull casing and lodged in her brain, causing a severe head injury. Testimony of Dr. Allen Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3).
8. Immediately after the explosion, Alisa Michelle Flatow slumped over onto her traveling companion, Kesari Rusa. Her eyes were open and her hands clutched. She received emergency medical treatment on the scene. Because her injuries were so severe, she was among the first of the injured which the Israeli Defense Forces medivac'ed by helicopter to the Soroka Medical Center in B'er Sheva for immediate medical attention. Testimony of Kesari Rusa; testimony of and videotape by David Shaenbaum; testimony of Orit Taft.
9. Upon her arrival at the Soroka Medical Center approximately one hour after the bombing, Alisa Michelle Flatow's pulse and respiration were good without medical assistance. Her pupils reacted to light and she responded to deep pain stimuli. She was assessed as a 5 of a possible 15 on the Glasgow coma scale. She had sustained a depressed skull fracture and intracerebral lacerations. Testimony of Dr. Allen Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3).
10. From approximately 3 to 5 pm local time, Alisa Michelle Flatow was in emergency surgery; the entrance wound was debrided and a partial craniotomy was performed in order to alleviate pressure from the intracerebral hemorrhaging and concomitant swelling of brain tissue within the skull. Testimony of Dr. Allen Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3).
11. To a reasonable degree of medical certainty, Alisa Michelle Flatow suffered extreme bodily pain and suffering for at least three to five hours as a result of the injuries she sustained in the bombing. Testimony of Dr. Gregory Threatte.
12. Plaintiff Stephen M. Flatow first heard of the attack on the radio on April 9, 1995 at approximately 7:45 am EST; he immediately began attempts to contact his daughter. That decedent had been on the number 36 Egged bus was confirmed when one of her traveling companions telephoned her family in the United States. Plaintiff made extraordinary efforts to locate his daughter; after several hours, the Medical Center confirmed that she was being treated there and that she was in grave condition. Plaintiff immediately flew to Israel to be with his daughter, Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; testimony of Rosalyn Flatow; testimony of Alan Mitrani.
13. Shortly after his arrival at the Soroka Medical Center the morning of April 10, 1995, the hospital director and Dr. Allen Fisher, the attending physician, informed Stephen M. Flatow that Alisa Michelle Flatow showed no brain activity, that all physical functions relied upon artificial life support, and that there was no hope for her recovery. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow; testimony of Dr. Allan Fisher; decedent's medical records from the Soroka Medical Center, with translation from Hebrew (exhibit 3).
14. The Flatow family is Jewish and observes Orthodox Jewish practice. Orthodox doctrine reveres the sanctity of life and of the body; the traditional view is that all means should be exerted to prolong life, and that the body must be buried intact. However, Orthodox doctrine also considers the saving of one life to be the saving of an entire universe. Alisa Michelle Flatow's condition presented an opportunity to save lives through organ donation, which is extremely rare in Israel precisely because it is incompatible with the sanctity of life and of the body. After consulting with several Rabbis, Stephen M. Flatow requested that no further extraordinary efforts be exerted on behalf of his daughter, that life support be terminated, and that his daughter's organs be harvested for transplant. Alisa Michelle Flatow died at approximately 10:00 a.m. local time on April 10, 1995. Her organs saved three lives and significantly improved the quality of life for several other persons. Affidavit (Exhibit 2) and testimony of Stephen M. Flatow, testimony of Dr. Allan Fisher decedent's medical records from the Soroka Medical Center, with translation from Hebrew (Exhibit 3); testimony of Ari Mendelson (organ recipient).
15. Alisa Michelle Flatow had been accompanied on the bus by two companions who were also United States nationals and were injured as a result of the explosion. United States nationals often rode this bus line. The attack on the bus caused seven other deaths and many injuries, all involving non-United States nationals. Testimony of Kesari Rusa; testimony of Orit Taft; U.S. DEP'T OF STATE, PATTERNS OF GLOBAL TERRORISM 1995 (April 1996).
17. The Israeli government informed Stephen M. Flatow that the Shaqaqi faction of Palestine Islamic Jihad had claimed responsibility for the bombing, and that their investigation had confirmed that claim. Affidavit of Stephen M. Flatow (Exhibit 2).
18. In July 1996, Plaintiff Stephen M. Flatow and his counsel met with Ambassador Philip Wilcox, who then served as the Department of State's Coordinator for Counterterrorism. During that meeting, he informed Mr. Flatow that the Department of State was satisfied that the group which had claimed responsibility for the bombing, the Shaqaqi faction of Palestine Islamic Jihad, had in fact perpetrated the bombing, and that the Islamic Republic of Iran provided approximately two million dollars to Palestine Islamic Jihad annually in support of its terrorist activities. Affidavit of Stephen M. Flatow (Exhibit 2).
19. Defendant the Islamic Republic of Iran is a foreign state and has been designated a state sponsor of terrorism pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. § 2405(j)) continuously since January 19, 1984. Defendant provides material support and resources to Palestine Islamic Jihad by supplying funds and training for the Shaqaqi faction's terrorist activities in the Gaza Strip region. Testimony of Dr. Reuven Paz, testimony of Dr. Patrick Clawson, testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
20. Defendant the Islamic Republic of Iran sponsors the Shaqaqi faction's terrorist activities within the meaning of 28 U.S.C. § 1605(a)(7) and 28 U.S.C. § 1605 note by providing it with all of its funding. Testimony of Dr. Reuven Paz; testimony of Dr. Patrick Clawson; testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
22. Defendant Ayatollah Ali Hoseini Khamenei is the Supreme Leader of the Islamic Republic of Iran. Acting as an official of the Islamic Republic of Iran, Defendant Ayatollah Ali Hoseini Khamenei performed acts within the scope of his office, within the meaning of 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note, which caused the death of Alisa Michelle Flatow. Specifically, Defendant Khamenei approved the provision of material support and resources to the Shaqaqi faction of Palestine Islamic Jihad. Testimony of Dr. Reuven Paz; testimony of Dr. Patrick Clawson; testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
23. Defendant Ali Akbar Hashemi-Rafsanjani is the former President of the Islamic Republic of Iran. Acting as an official of the Islamic Republic of Iran, Defendant Ali Akbar Hashemi-Rafsanjani performed acts within the scope of his office, within the meaning of 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note, which caused the death of Alisa Michelle Flatow. Specifically, Defendant approved the provision of material support and resources to the Shaqaqi faction of Palestine Islamic Jihad. Testimony of Dr. Reuven Paz; testimony of Dr. Patrick Clawson; testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
24. Defendant Ali Fallahian-Khuzestani is the former head of the Iranian Ministry of Information and Security. Acting as an official of the Islamic Republic of Iran, Defendant Ali Fallahian-Khuzestani performed acts within the scope of his office, within the meaning of 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note, which caused the death of Alisa Michelle Flatow. Specifically, Defendant Fallahian approved the provision of material support and resources by the Islamic Republic of Iran to the Shaqaqi faction. Testimony of Dr. Reuven Paz; testimony of Dr. Patrick Clawson; testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
25. Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, while acting as an agent of the Islamic Republic of Iran, and Iranian officials Ayatollah Ali Hoseini Khamenei, former President Ali Akbar Hashemi-Rafsanjani, and former Minister Ali Fallahian-Khuzestani, each acting in his official capacity, conspired to provide material support and resources to the Shaqaqi faction of Palestine Islamic Jihad, a terrorist organization, within the meaning of 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note, which caused the death of Alisa Michelle Flatow. Testimony of Dr. Reuven Paz; testimony of Dr. Patrick Clawson; testimony of former FBI Deputy Assistant Director for Counterterrorism Harry Brandon.
26. Alisa Michelle Flatow's death was caused by a willful and deliberate act of extrajudicial killing because the explosion was caused by a bomb that was deliberately driven into the bus by a member of the Shaqaqi faction of the Palestine Islamic Jihad acting under the direction of Defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani and Ali Fallahian-Khuzestani.
27. As a result of Alisa Michelle Flatow's death, her Estate suffered a loss of accretions which could have been expected to occur during the course of her anticipated life expectancy in the amount of $ 1,508,750.00. Report (Exhibit 6) and testimony of Dr. Jerome S. Paige.
28. As a result of Alisa Michelle Flatow's death, her heirs-at-law have suffered an economic loss for the expenses associated with her funeral and final services in the amount of $ 4,470.00. Funeral Home Invoice (Exhibit 4).
29. As the result of Alisa Michelle Flatow's death, her parents and her surviving sisters and brother have suffered and will continue to suffer severe mental anguish and the loss of her society. Testimony of Stephen M. Flatow; testimony of Rosalyn Flatow; testimony of Gail Flatow; testimony of Francine Flatow, testimony of Ilana Flatow, testimony of Etan Flatow, testimony of Alan Mitrani, testimony of Lauren Sloane, testimony of Kesari Rusa.
I. CONCLUSIONS OF LAW WITH RESPECT TO JURISDICTION
A. THE FOREIGN SOVEREIGN IMMUNITIES ACT CONTROLS THIS ACTION.
As this action is brought against a foreign state, its intelligence service acting as its agent, and three of its officials, acting in their official capacity,
the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 et seq. ["FSIA"], as amended, controls this action. The FSIA must be applied in every action involving a foreign state defendant. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983); 28 U.S.C. § 1330. The sole bases for subject matter jurisdiction in an action against a foreign state defendant are the FSIA's enumerated exceptions to immunity. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). This Court lacks jurisdiction over this matter unless it falls within one of the FSIA's enumerated exceptions to foreign sovereign immunity. See Nelson v. Saudi Arabia, 507 U.S. 349, 355, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993).
Until the beginning of this century, the United States afforded foreign states absolute immunity from suit in courts of the United States as a matter of common law. See. e.g., The Schooner Exchange v. M'Faddon, 11 U.S. 116, 3 L. Ed. 287 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 70 L. Ed. 1088, 46 S. Ct. 611 (1926). With the rise of Communism and the consequent outgrowth of state trading and shipping companies, however, the United States began to recognize the restrictive theory of foreign sovereign immunity, which permitted suits arising from a foreign state's commercial activities. See S. SUCHARITKUL, STATE IMMUNITIES AND TRADING ACTIVITIES IN INTERNATIONAL LAW (1959); Friedmann, Changing Social Arrangements in State-Trading States and their Effect on International Law, 24 LAW & CONTEMP. PROBS. 350 (1959).
The issuance of the Tate Letter, on May 19, 1952, officially marked this transition for United States practice. See Letter from Jack B. Tate, Acting Legal Advisor, to Acting Attorney General (May 19, 1952), reprinted at 26 DEP'T OF STATE BULL. 984-985 and reprinted at Appendix 2 to Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 711, 48 L. Ed. 2d 301, 96 S. Ct. 1854 (1976) [hereinafter "Tate Letter"]. The Tate Letter announced that the United States would henceforth follow the restrictive theory in making foreign sovereign immunity determinations. In 1976, in order to promote uniform and apolitical determinations, Congress transferred immunity determinations from the Department of State to the judiciary and otherwise essentially codified the Tate Letter's restrictive theory of foreign sovereign immunity in the FSIA. See H.R. REP. NO. 1487, 94TH CONG., 2D SESS. at 12, reprinted in 1976 U.S.C.C.A.N. 6604, 6610-11; GARY B. BORN AND DAVID WESTIN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS at 452-453 (2d ed. 1992); see also M. Sandler, D. Vagts & B. Ristau, eds., Sovereign Immunity Decisions of the Department of State, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1977 at 1017.
Courts steadfastly refused to extend the FSIA as originally enacted beyond commercial activities, jure gestionis, to reach public acts, jure imperii, outside the United States. This judicial restraint permitted foreign states to use the FSIA as a shield against civil liability for violations of the law of nations committed against United States nationals overseas. See, e.g., Nelson, 507 U.S. 349, 123 L. Ed. 2d 47, 113 S. Ct. 1471; Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996), cert. denied 137 L. Ed. 2d 714, 117 S. Ct. 1569, reh'g denied 138 L. Ed. 2d 189, 117 S. Ct. 2427 (1997) [hereinafter "Pan Am 103"]; Cicippio v. Islamic Republic of Iran, 308 U.S. App. D.C. 102, 30 F.3d 164 (D.C. Cir. 1994), cert. denied 513 U.S. 1078, 130 L. Ed. 2d 631, 115 S. Ct. 726 (1995); Princz v. Federal Republic of Germany, 307 U.S. App. D.C. 102, 26 F.3d 1166 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121, 130 L. Ed. 2d 803, 115 S. Ct. 923 (1995).
1. RECENT AMENDMENTS TO THE FOREIGN SOVEREIGN IMMUNITIES ACT CREATE SUBJECT MATTER JURISDICTION AND FEDERAL CAUSES OF ACTION FOR CERTAIN ACTS OF STATE SPONSORED TERRORISM.
In 1996 Congress took action which effectuated an even greater change than that represented by the Tate Letter. In the Antiterrorism and Effective Death Penalty Act of 1996, Congress lifted the immunity of foreign states for a certain category of sovereign acts which are repugnant to the United States and the international community -- terrorism. Pub.L. 104-132, Title II, § 221(a), (April 24, 1996), 110 Stat. 1241 codified at 28 U.S.C.A § 1605 (West 1997 Supp.) [hereinafter "state sponsored terrorism exception"]. That Act created an exception to the immunity of those foreign states officially designated by the Department of State as terrorist states
if the foreign state commits a terrorist act, or provides material support and resources to an individual or entity which commits such an act, which results in the death or personal injury of a United States citizen. See 28 U.S.C. § 1605(a)(7)
; see also H.R. Rep. No. 383, 104th CONG., 1ST SESS. 1995 at 137-38, available at 1995 WL 731698.
Although the Antiterrorism Act created a forum competent to adjudicate claims arising from offenses of this nature, serious issues remained, in particular, the causes of action available to plaintiffs. Congressman Jim Saxton sponsored an amendment to 28 U.S.C. § 1605(a)(7) with the intent to clarify this and other issues. In Congressman Saxton's experience as Chairman of the House Task Force on Counterterrorism and Unconventional Warfare and member of the House National Security Committee, in order for the exception for immunity to have the desired deterrent effect, the potential civil liability for foreign states which commit and sponsor acts of terrorism would have to be substantial. See Congressman Jim Saxton, News Release: Saxton to the Flatow Family: "Be Strong, America Is Behind You" (February 26, 1997); see also NORMAN J. SINGER, 2 SUTHERLAND ON STATUTORY CONSTRUCTION at § 48.16 (5th ed. 1992, 1997 Supp.) citing Brock v. Pierce County, 476 U.S. 253, 90 L. Ed. 2d 248, 106 S. Ct. 1834 (1986). Therefore, the amendment to 28 U.S.C. § 1605(a)(7) expressly provided, inter alia, that punitive damages were available in actions brought under the state sponsored terrorism exception to immunity. See H.R. CONF. REP. 863, 104TH CONG, 2ND SESS. 1996 reprinted at 1996 U.S.C.C.A.N. 924; Senator Frank Lautenberg, News Release: Flatow Family's Unprecedented Lawsuit Against Iran Will Help Deter Future Acts of Terrorism (February 26, 1997). The amendment, Civil Liability for Acts of State Sponsored Terrorism, was enacted on September 30, 1996 as part of the 1997 Omnibus Consolidated Appropriations Act, Pub.L. 104-208, Div. A, Title I § 101(c) [Title V, § 589] (September 30, 1996), 110 Stat. 3009-172 reprinted at 28 U.S.C.A. § 1605 note (West 1997 Supp.). This provision of law is commonly referred to as the "Flatow Amendment."
The Flatow Amendment is apparently an independent pronouncement of law, yet it has been published as a note to 28 U.S.C. § 1605, and requires several references to 28 U.S.C. § 1605(a)(7) et seq. to reach even a preliminary interpretation. As it also effects a substantial change to 28 U.S.C. § 1605(a)(7), it appears to be an implied amendment. See 1A SUTHERLAND ON STATUTORY CONSTRUCTION at § 22.13 ("An implied amendment is an act which purports to be independent, but which in substance alters, modifies, or adds to a prior act."); see also id. at § 22.20-21. The brief explanation of the Flatow Amendment's purpose in the House Conference Report explicitly states that it was intended to increase the measure of damages available in suits under 28 U.S.C. § 1605(a)(7). See H.R. CONF. REP. 863, 104TH CONG, 2ND SESS. 1996, reprinted at 1996 U.S.C.C.A.N. 924. Both the Flatow Amendment and 28 U.S.C. § 1605(a)(7) address the same subject matter, and were enacted during the same session of Congress, only five months apart. Interpretation in pari materia is therefore the most appropriate approach to the construction of both provisions, 1A SUTHERLAND ON STATUTORY CONSTRUCTION at § 22.32. The amendment should be considered to relate back to the enactment of 28 U.S.C. § 1605(a)(7) as if they had been enacted as one provision, id. at §§ 22.29-31, 34-36, and the two provisions should be construed together and in reference to one another. Id. at 22.29 n.16 citing United States v. Dickerson, 310 U.S. 554, 84 L. Ed. 1356, 60 S. Ct. 1034 (1940). Interpretation of 28 U.S.C. § 1605(a)(7) and the Flatow Amendment in pari materia demonstrates the coherent legislative intent behind the two enactments.
2. 28 U.S.C. § 1605(a)(7) AND 28 U.S.C.A. § 1605 note APPLY RETROACTIVELY FOR THE PURPOSES OF ESTABLISHING SUBJECT MATTER AND PERSONAL JURISDICTION.
Although the events complained of herein occurred more than a year prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 1605(a)(7) provides a basis for subject matter jurisdiction. Congress has expressly directed the retroactive application of 28 U.S.C. § 1605(a)(7) in order to further a comprehensive counterterrorism initiative by the legislative branch of government:
The amendments made by this subtitle shall apply to any cause of action arising before, on or after the date of the enactment of this Act [April 24, 1996].
§ 221(c) of Pub.L. 104-132. As the Supreme Court has stated with respect to the application of legislation to pre-enactment conduct, "where congressional intent is clear, it governs." Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990). Although the application of statutes to pre-enactment conduct is traditionally disfavored, see Bowen v. Georgetown Hospital, 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), where "Congress has expressly prescribed the statute's proper reach[,] there is no need to resort to judicial default rules." Landgraf v. USI Film Products, 511 U.S. 244, 271, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994).
Furthermore, the state sponsored terrorism exception to foreign sovereign immunity is a remedial statute. It creates no new responsibilities or obligations; it only creates a forum for the enforcement of pre-existing universally recognized rights under federal common law and international law. See, e.g., Alvarez-Machain v. United States, 107 F.3d 696, 702 (9th Cir. 1997), cert. denied, 118 S. Ct. 60 (1997) (discussing Torture Victim Protection Act). As with all other civil jurisdiction statutes, 28 U.S.C. § 1605(a)(7) "'speak[s] to the power of the courts rather than to the rights or obligations of the parties.'" Landgraf, 511 U.S. at 274 (discussing Civil Rights Act of 1991) (citation omitted). Almost all courts have upheld the retroactive application of long-arm statutes. See 2 SUTHERLAND ON STATUTORY CONSTRUCTION at § 41.09 citing McGee v. International Life Ins. Co., 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957).
At the time of the act complained of herein, the terrorist acts enumerated in 28 U.S.C. § 1605(a)(7) were federal criminal offenses, see 18 U.S.C. § 2331. Given mounting Congressional frustration at the refusal of the federal courts to find jurisdiction in cases such as Princz, Pan Am 103, Cicippio, and Nelson, and the progressive development of United States legislation and jurisprudence on the subject of jus cogens violations, see, e.g., Hilao v. Estate of Marcos, 103 F.3d 767; Kadic v. Karadzic, 70 F.3d 232; Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996), cert. denied, 136 L. Ed. 2d 51, 117 S. Ct. 96 (1996); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995). See also Princz, 26 F.3d at 1176 (D.C. Cir. 1994) (Wald, J., dissenting), the creation of an exception to foreign sovereign immunity which provides jurisdiction over foreign state perpetrators of the acts enumerated in 28 U.S.C. § 1605(a)(7) should not have been unanticipated. "Any expectation . . . [to the contrary] . . . is rightly disturbed." Cabiri, 921 F. Supp. at 1195-96 (S.D.N.Y. 1996) (discussing Torture Victim Protection Act), citing Landgraf, 511 U.S. at 273-275.
The Islamic Republic of Iran in particular has been aware of United States policy condemning international terrorism at least since the 1979-1981 hostage crisis in Tehran. It has been continuously designated a state sponsor of terrorism since January 19, 1984. Its continued support of terrorist groups has prompted the United States to suspend diplomatic relations and participate in the international embargo, including extraordinary enforcement measures such as trade restrictions. See U.S. DEP'T OF STATE, PATTERNS OF GLOBAL TERRORISM 1995 at 23; Iran and Libya Sanctions Act of 1996, Pub.L. 104-72, 104th CONG., 2D SESS. (August 5, 1996), 110 Stat. 1541. As international terrorism is subject to universal jurisdiction, Defendants had adequate notice that their actions were wrongful and susceptible to adjudication in the United States. Eric S. Kobrick, The Ex Post Facto Prohibition and the Exercise of Universal Jurisdiction over International Crimes, 87 COLUM. L. REV. 1515, 1528-30 (1987) (concluding that criminal statutes apply retroactively to international terrorist acts).
Therefore, the state sponsored terrorism provision implicates no Constitutionally protected interest which would prohibit the application of 28 U.S.C. § 1605(a)(7) to pre-enactment conduct.
3. FEDERAL COMMON LAW PROVIDES THE RULES OF DECISION IN CASE BROUGHT PURSUANT TO 28 U.S.C. § 1605(a)(7) AND 28 U.S.C.A. § 1605 note.
This action is brought pursuant to a new exception to the FSIA which was created as part of a federal initiative to combat international terrorism, the Antiterrorism and Effective Death Penalty Act of 1996. The State sponsored terrorism provisions represent a sea change in the United States' approach to foreign sovereign immunity. For the first time, Congress has expressly created an exception to immunity designed to influence the sovereign conduct of foreign states and affect the substantive law of liability for non-immune acts. Cf. H.R. Rep. 94-1487 at 12, reprinted at 1976 U.S.C.C.A.N. at 6610; First National City Bank v. Banco para el Comercio Exterior de Cuba, 462 U.S. 611, 619-20, 77 L. Ed. 2d 46, 103 S. Ct. 2591 (1983).
Cases under the FSIA have considered choice of law issues almost exclusively within the commercial context, and have applied state rules of decision. See, e.g. First National City Bank; 462 U.S. at 620; Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1025 (9th Cir. 1987); Guzel v. State of Kuwait, 818 F. Supp. 6, 10 (D.D.C. 1993); Skeen v. Federative Republic of Brazil, 566 F. Supp. 1414, 1417 (D.D.C. 1983); see also Joel Mendal Overton, II, Will the Real FSIA Choice-of-Law Rule Please Stand Up?, 49 WASH. & LEE L. REV. 1591 (1992). The notable exception is Liu v. Republic of China; however in ...