Saturday, June 10, 2006
Kenneth Timmerman reports that a magistrate judge in the District of Columbia has dismissed a lawsuit against the Islamic Republic of Iran brought by the families of the victims of the 1996 "Khobar Towers" bombing in Saudi Arabia.
In an opinion handed down June 6, 2006, Judge Deborah A. Robinson asserted that the plaintiffs "offered no evidence regarding the action of any official, employee or agent" or the Iranian regime, its intelligence ministry (MOIS), or the Islamic Revolution Guards Corps, IRGC.
The article certainly makes it look as though the State Department dropped the hammer on the lawsuit, twisting the judge's arm, or perhaps leading her in the direction she wanted to go anyway. The Timmerman story claims that the judge shut down inconvenient testimony and communicated ex parte with the State Department. The State Department blames the judge, who apparently asked it to write the amicus brief opposing the progression of the lawsuit:
However, State Department attorneys who submitted an amicus curiae brief to the court that supported the position of the Iranian Government, told a reporter they had only done so "because the Court explicitly asked us to intervene."
Andy McCarthy, who knows more about investigating terrorism than most officials in the State Department will ever know, points out that the 9/11 Commission Report fingered Iran for having ordered the bombing, and even conceded that it might have been a joint venture with al Qaeda. Thomas Joscelyn takes us through all the evidence against Iran in Kenneth Pollack's The Persian Puzzle (which, by the way, is essential background reading for understanding our policy dilemma). That Pollack and Timmerman (who wrote the much more hawkish and less well footnoted Countdown to Crisis: The Coming Nuclear Showdown with Iran) agree that Iran was behind Khobar Towers is in and of itself startling.
The question is, why did the State Department apparently shut down this case? McCarthy, who is a very thoughtful fellow, does not tell us what he thinks. Joscelyn also leaves us hanging, but promises more later. Timmerman quotes "an advocate for the victims," who smells conspiracy:
An advocate for the victims, Michael Engelberg, told Newsmax he believes the State Department intervened to get the case dismissed as a sop to the Iranian regime.
"This is more than coincidental," he said. "The timing of this, just as Solana goes to Tehran, makes me feel uncomfortable."
Javier Solana, the EU's foreign policy chief (if you can imagine such a person), was in Tehran this week trying to get the mullahs to accept the Western alliance's
The State Department's intervention in this case is obviously wrapped up in our negotiations with Iran, or, more accurately, with the rest of the UNSC+1 (the Veto Five plus Germany) over what to do about Iran's nuclear weapons program. In all likelihood, however, it is not nearly the nefarious "sop" that Michael Engelberg argues, and Kenneth Timmerman probably believes. There are plenty of less annoying and more controllable "sops" we can toss if we want to bolster Javier Solana's credibility, and I doubt in any case that even the State Department wants to do that.
In a broader sense, though, American lawsuits against the Islamic Republic will constrain our ability to negotiate with the mullahs when and if it should become propitious to do so. Among its many obsessions, Iran has been burned up for years over the refusal of the United States to release frozen assets under our control. Release of those assets are one of the few "carrots" interesting to Iran that the United States can offer. If those assets are subject to seizure by victorious American plaintiffs, we will not be able to trade them away.
This is not the first time that the agitation of victims families has constrained our government's negotiating position. Families of the Lockerbie victims fought any settlement with Libya that did not include compensation. They eventually did get that compensation, and the justice that went along with it, but it (arguably) came at price we should not ignore: we learned about the extent of A.Q. Khan's black market nuclear proliferation conspiracy later than we would have otherwise. Were it not for American plaintiffs and their lawyers, we might have shut down Khan earlier. Was the delay for individual justice worth the price of that delay? Probably not.
There is no way you can know that we would have heard about the Khan network any earlier than we did. It is quite likely that the Lockerbie case showed the Libyans that politicical shenanigans were not going to come to their aid.
I question the legality of a judge asking a separate party to submit a brief in opposition to a plaintiff. Smacks of partiality. I hope the appeals court intervenes.
I don't know we would have learned about the Khan network any earlier, but you can't discount the possibility, either (at least I don't think you can -- I admit I am not an expert on this subject).
Point is, we have to let our broader strategic interests trump the rights -- yes, even the rights -- of individual plaintiffs in the tort system. I am no fan of the State Department, but we have to give the administration the room to trade with these guys. It may turn out that we will make no trade and revert to more profound coercion, but we can't make our guys give up all their good cards before the hand starts.