'State Sponsors of Terrorism' is a Question Not an Answer: The Terrorism Amendment to the FSIA Makes Less Sense Now than it Did Before 9/11

Abstract

The "State Sponsors of Terrorism" exception to sovereign immunity was an ill-conceived solution to very real problems: ending terrorism and compensating its American victims. In dealing with the latter it placed the burden of deciding the proper compensation of victims in the hands of the courts and thereby made the former more difficult to achieve. This paper argues that the flaws inherent in the terrorism exception before September 11, 2001, were not minimized by the events of that date. Rather, they were magnified and exposed. Perhaps the most obvious flaw in the exception is that the primary sponsor of the terrorists was not even denominated a "State Sponsor of Terrorism" at the time of the attack. There are many other flaws. Inherent in the term "state sponsors of terrorism" are three questions, none of which are as easy as they appear at first blush: (1) What is a "state"? (2) Who is a "sponsor"? and (3) What is "terrorism"?