Problem: victims of transnational terrorism face legal, practical, and political barriers when they try to hold foreign states and secondary actors accountable. Two transformative legal shifts have changed the landscape: expanding U.S. jurisdiction for harms “felt” in the United States and creating a viable civil cause of action for aiding-and-abetting terrorism. But law reform alone has not solved the problem. Litigation is slow, uncertain, and politically charged—especially in high-profile matters like cases alleging Saudi Arabia’s role in the 9/11 attacks, suits against alleged al-Qaeda supporters, and the complex distribution of 9/11 victim compensation funds. This article breaks down the problem, explains why it matters, analyzes root causes, and lays out solutions and practical implementation steps with expert-level insights and contrarian viewpoints.
1. Define the problem clearly
At its core, the problem is twofold:
- Legal access: Victims and families often lack a reliable forum to sue foreign states, businesses, banks, and other secondary actors that allegedly enabled terrorism. Effective remedies: Even when suits proceed, proving causation and securing meaningful relief is difficult, slow, and politically fraught—leaving many victims without compensation or accountability.
Concrete examples: the post-9/11 litigation landscape. Plaintiffs have sought damages from Saudi Arabia and from institutions and individuals alleged to have provided material support to al-Qaeda. Congress passed the Justice Against Sponsors of Terrorism Act (JASTA) in 2016 to expand victims’ access to U.S. courts—yet litigation remains drawn out, with many cases pending or subject to immunity and discovery battles. At the same time, the September 11th Victim Compensation Fund (VCF) provided monetary relief to many, but questions remain about sufficiency and how it interacts with civil litigation.
2. Explain why it matters
Why does this matter? There are three critical reasons:
Justice and closure: Victims and families seek not only monetary recovery but also recognition, accountability, and a public record of wrongdoing. Deterrence and disruption: Effective civil remedies can deter state and non-state actors from facilitating terrorism, by imposing legal and financial consequences. Foreign policy and rule of law: Litigation can alter diplomatic relationships and change how commerce, finance, and aid work across borders; it also tests how U.S. law applies extraterritorially.Cause-and-effect: When victims lack effective legal recourse, governments face weaker incentives to police or cut ties with violent networks. Conversely, robust accountability mechanisms can shift behavior by increasing the reputational and economic costs of enabling terrorism.
3. Analyze root causes
To craft solutions, we must trace root causes precisely:
Sovereign immunity and jurisdictional gaps
Traditionally, sovereign immunity (FSIA) shielded foreign states from suit in U.S. courts, absent narrow exceptions. For many years plaintiffs could not sue foreign governments for terrorist acts abroad. The effect: a legal barrier that insulated states from civil liability even when their agents or policies allegedly contributed to terrorism.
Proving secondary liability
Aiding-and-abetting and “material support” theories require plaintiffs to show that secondary actors knowingly provided substantial assistance that was a proximate cause of the harm. That is legally and factually difficult: proving knowledge, tracing financial flows, and establishing causation across borders is complex and resource-intensive.
Evidence asymmetry and state secrecy
Key evidence often sits in foreign jurisdictions, in the hands of states that assert privilege or immunity. Intelligence, diplomatic cables, and internal corporate records may be inaccessible. The result: plaintiffs face evidentiary gaps that impede success at summary judgment or trial.
Political and diplomatic constraints
High-stakes litigation implicates foreign policy. Courts may be reluctant to disrupt diplomacy; the Executive Branch may intervene. These political pressures can shape litigation posture, settlement incentives, and rules of discovery.
4. Present the solution
There is no single fix. The solution is a multi-pronged strategy that combines legal reform, smarter litigation tactics, policy coordination, and calibrated compensation mechanisms. The objective: create predictable, fair, and enforceable pathways to accountability while managing diplomatic and humanitarian risks.
Core elements of the solution
- Targeted statutory clarity: Narrowly drafted provisions that preserve sovereign immunity where appropriate but permit suits against states that materially supported terrorism—limited to acts that foreseeably and directly relate to U.S.-based harms. Enhanced investigative tools: Use depositions, targeted subpoenas, and cross-border assistance (MLATs) to pierce evidence gaps while respecting foreign-sensitivity protocols. Procedural safeguards: Trial judges should employ phased discovery and clear causation standards to prevent abusive, fishing-expedition litigation while preserving meritorious claims. Compensation layering: Combine funds like the VCF with civil remedies to ensure prompt relief, plus clawback or contribution claims should civil suits yield recoveries. International cooperation mechanisms: Create diplomatic and legal channels to resolve state-to-state friction produced by litigation, including arbitration or confidential settlement tracks for sensitive cases.
5. Implementation steps
Action must be tactical and sequenced. Below is a concrete implementation roadmap for plaintiffs, policymakers, and judges.
For plaintiffs and their counsel
Prioritize evidence mapping: Immediately identify documentary and testimonial evidence, financial trails, and potential state connections. Invest in targeted subpoenas and third-party discovery early. Use phased pleadings: Start with narrow claims (direct actors) and expand to aiding-and-abetting only when evidentiary backing emerges; this reduces early dismissal risk. Leverage administrative remedies: Where compensation funds exist (e.g., VCF), file promptly to secure interim relief while civil cases progress. Pursue hybrid strategies: Combine public litigation with confidential settlement talks—sometimes a negotiated outcome can yield faster compensation and preserve diplomatic stability.For policymakers
Refine statutes: Amend JASTA-like provisions to define causation, state action thresholds, and remedial limits—striking a balance between access to justice and preventing frivolous suits. Fund investigative support: Provide resources for victims’ counsel and government investigators to trace complex financial networks used by terrorist groups. Create an international mediation track: Establish an independent panel to handle sensitive claims against foreign states, offering victims a path to remedy without full-scale litigation when national security is implicated.For courts
Apply phased discovery and early in camera review for sensitive materials to balance national security concerns with plaintiffs’ needs. Clarify causation doctrine: Adopt workable standards that connect secondary assistance to proximate harm without requiring impossible evidentiary proof. Enforce sanctions for discovery abuse and define limits on punitive damages when suits implicate foreign policy consequences.6. Expected outcomes
Adopting the solution framework will produce concrete cause-and-effect results:
- Faster relief for victims: Combining compensation funds with stratified litigation will reduce the time to payment for many plaintiffs. Improved evidence quality: Early, targeted investigations reduce speculative claims and increase the probability of judgments or high-value settlements when defendants are truly implicated. Managed diplomatic risk: A mediation track and clearer legal standards reduce unpredictable foreign-policy shocks and make litigation outcomes more stable. Behavioral change: When private actors and states see their actions lead to enforceable liabilities, financial and reputational incentives shift away from tolerating or enabling extremist networks.
However, expect pushback: expanded liability will generate political resistance from both foreign governments and domestic institutions that fear exposure. Courts will have to calibrate remedies to avoid overreach.
Expert-level insights
1) Jurisdictional design matters: The most durable legal change is one that ties jurisdiction to concrete, foreseeable harms in the United States (e.g., victims injured in U.S. soil or where financial transactions had substantial U.S. effects). Broad extraterritorial jurisdiction invites separation-of-powers and international-law challenges.
2) Causation doctrine is the battleground: Courts will increasingly define a middle path between strict proximate-cause requirements and loose “but-for” tests. Expect more reliance on probabilistic financial tracing (e.g., “substantial factor” standards) supported by forensic accounting.
3) Disclosure vs. secrecy tradeoffs: Allowing limited, judicially supervised discovery of sensitive state materials—possibly under protective orders or in camera review—can unlock decisive evidence without full diplomatic exposure.
4) Financial institutions as pressure points: Banks and payment platforms that enable flows to extremist groups are often easier to sue and collect against than foreign states. Targeting them can produce pragmatic results and reduce the need for state-on-state litigation.
Contrarian viewpoints
1) Risk of undermining diplomacy and national security: Critics argue JASTA-style laws create leverage for foreign governments to retaliate or hamper U.S. diplomatic agility. They point out that litigation can compel disclosure of intelligence, harming counterterrorism.
2) Chilling humanitarian action: Broad aiding-and-abetting liability could deter NGOs and charities operating in fragile regions from delivering aid for fear of litigation if any beneficiary later commits violence—even when the organization’s intent is purely humanitarian.
3) Judicial overreach and forum-shopping: Some observers warn that U.S. courts are not the right arena to adjudicate complex foreign relations questions and that plaintiffs will forum-shop to find sympathetic juries, leading to inconsistent and politically tinged outcomes.
These critiques are valid and must inform the design of statutory and procedural safeguards. The objective is not to remove accountability but to channel it in ways that minimize unintended harms.
Current litigation snapshot (as of mid-2024)
Practical status: JASTA remains the primary statutory tool enabling civil suits against foreign states for terrorism-related harms felt in the U.S. Since its passage in 2016, plaintiffs have filed high-profile suits—including claims involving Saudi Arabia and allegations of support for al-Qaeda affiliates. Litigation has produced a mixed record: some claims survived initial motions; others were dismissed on technical or immunity-related grounds. Many Saudi-related suits remain pending, with complex discovery battles and appeals shaping the timeline.
The September 11th Victim Compensation Fund (VCF) has delivered significant compensation to thousands of claimants and remains an essential mechanism for prompt relief. That fund and related programs also affect civil litigation dynamics: receiving VCF funds can influence damage calculations and settlement negotiations.
Meanwhile, lawsuits alleging material support to al-Qaeda and affiliated groups continue under criminal statutes and civil theories. Civil plaintiffs increasingly pursue financial institutions and intermediaries—because tracing cash and payment systems often provides the clearest causation path. Expect more filings that leverage forensic financial evidence rather than purely diplomatic or intelligence records.
Bottom line — what to do now
For victims and advocates: pursue compensation and litigation in parallel. Use funds like the VCF for immediate relief while building targeted, evidence-driven civil claims. For policymakers: refine statutes to preserve access while limiting abuse and fund investigative capacity. For courts: adopt phased, protective https://www.israelnationalnews.com/news/414135 discovery and clarify causation standards that are realistic for cross-border cases.
Accountability for terrorism requires a measured legal architecture that recognizes political realities, evidentiary limits, and victims’ urgent needs. The twin legal shifts—expanded U.S. jurisdiction and aiding-and-abetting liability—offer tools. Getting outcomes right depends on disciplined litigation strategies, smarter legislation, and procedural innovations that turn legal theory into practical justice.