Bus on Jaffa Road

by Mike Kelly

The only difference between this latest bombing and the others was the Palestinian who planned it. Hassan Salameh was not involved. The Tel Aviv bombing was carried out by Hamas’s terrorist brother, Palestinian Islamic Jihad—the same group that orchestrated the bombing in April 1995 that killed Alisa Flatow.

  Several days later, Sara’s cousin, Rivkah Fishman, walked into Jerusalem’s police station, a block away from the bus stop where Majdi Abu Wardah boarded the Number 18 bus with his duffle bag. For Fishman, Sara’s brutal murder was still fresh and painful. But after the funerals, memorial services, and burial, and the long days of greeting guests during shiva, someone had to retrieve the personal items that Sara and Matt carried that last day.

  Fishman identified herself to a police officer, then was handed two packages. She found Sara’s watch—still ticking. And Sara’s rings, her credit cards, and wallet and money.

  She reached for Matt’s package. Fishman pulled out three books—two burgundy-colored volumes of the Talmud and a smaller book of Jewish prayers. The books smelled of fire and smoke, with a faint aroma of the chemicals that Jerusalem’s fire fighters sprayed on the Number 18 to douse the flames. Otherwise, they were intact. The flames had not damaged any of the pages or, for that matter, the covers.

  Fishman fell silent and studied the books. Then a thought came to her. She remembered a line from the Book of Deuteronomy: “From his right hand came a fiery law for them.”

  For years, Fishman had struggled with the meaning of that line. But now, as she held the books that had survived the bombing and the fire, she understood the words in a new context. Yes, Sara and Matt had perished in a terrible explosion and fire, brought on by a lawless act. But she felt the law would ultimately provide an answer to this tragedy.

  Fishman mailed Sara’s watch and rings to Arline Duker in Teaneck and sent the books to the Connecticut home of Matt’s parents. Several days later, Len Eisenfeld found a package at his door. He opened it and pulled out Matt’s Talmud volumes.

  Then Len noticed Matt’s prayer book. As Len held the book in his hands, it seemed to open on its own to a page that featured a prayer for peace.

  The page had a reddish stain that did not belong there. Len looked closer.

  It was a drop of blood.

  Part II

  Ash

  Chapter 5

  On a Wednesday morning in April, about eight weeks after Sara and Matt were killed, Arline Duker walked through the gates of the White House with Len and Vicki Eisenfeld. Their arrival was not unexpected. The parents of Sara and Matt had been invited to watch President Bill Clinton sign into law a new bill that was supposed to punish terrorists.

  Arline, Len, and Vicki passed through a security checkpoint and were led to the South Lawn, a rolling expanse of lush, seemingly weed-free greenery that flows like a soft carpet all the way to Constitution Avenue and then up a hill to the Washington Monument. The South Lawn, with its perimeter of magnolia, maple, elm, and oak trees seems to offer a barrier to the harried, sometimes frenzied realm of Washington politics. It had been a sheep pasture when Woodrow Wilson was president during World War I, but by the last decades of the twentieth century, the lawn had become a pastoral setting for the pomp, power, and pageantry of the presidency.

  The president’s helicopter, Marine One, lands and departs from the South Lawn. Kings, queens, and foreign presidents are fetted there, including, in 1993, Israeli Prime Minister Yitzhak Rabin and Palestinian leader Yasser Arafat for the ceremonial signing of the Oslo Peace Accords. Each spring, children frolic on the grass during the White House Easter egg roll. And on almost any evening when the weather is warm, the lawn could be the setting for all manner of White House political dinners or parties.

  On this day, the ceremony was not meant to be lighthearted or celebratory. The law that the president was signing was actually the culmination of several years of painstaking efforts by his administration and Congressional leaders from both political parties to toughen up America’s antiterrorism statutes, including a provision to limit appeals for terrorists who had been sentenced to death and another provision that blocked suspected terrorists from access to classified evidence during their deportation hearings.

  The so-called Antiterrorism and Effective Death Penalty Act, or AEDPA, was not without its share of opponents, though. Much like the Patriot Act, which would be signed into law after the 9/11 attacks in 2001, the AEDPA had been roundly criticized by civil libertarians for giving law enforcement too much power. The executive director of the American Civil Liberties Union, Ira Glasser, was especially caustic: “It is a sad day for all Americans when the President of the United States chooses political expediency over the Bill of Rights.”

  Adding to the politics that had been part of the law’s journey through Congress and not passing up an opportunity to blame Republicans, even President Clinton had some harsh words about the new law he was signing. But Clinton’s assessment, in what was viewed as an attempt to appeal to conservative voters, was far different from the ACLU’s.

  In a statement that ran on for more than 1,400 words, Clinton said the law was not strong enough. “I asked that law enforcement be given increased access to hotel, phone, and other records in terrorism cases. I asked for a mandatory penalty for those who knowingly transfer a firearm for use in a violent felony. I asked for a longer statute of limitations to allow law enforcement more time to prosecute terrorists who use weapons such as machine guns, sawed-off shotguns, and explosive devices. But the Congress stripped each of these provisions out of the bill. And when I asked for a ban on cop-killer bullets, the Congress delivered only a study, which will delay real action to protect our nation’s police officers.”

  Nonetheless, Clinton called the new law “a real step in the right direction” that “provides valuable tools” for combating terrorism. “It stands as a tribute to the victims of terrorism and to the men and women in law enforcement who dedicate their lives to protecting all of us from the scourge of terrorist activity,” he said.

  Clinton’s statement, along with the critiques from others, underscored how much the law had been debated and amended. Almost every sentence had been argued over numerous times.

  Yet one provision seemed strangely immune from public praise or criticism. Deep in the bill was a seemingly nondescript paragraph that allowed relatives of American victims of terrorist attacks that occurred overseas to file lawsuits in US courts and to seek some measure of financial compensation—much as a victim in an auto accident could file suit against the driver of another car, citing negligence, carelessness, or some level of disregard for human life.

  Arline Duker and Len and Vicki Eisenfeld did not know it, but that single paragraph would dominate their lives in the coming years.

  The paragraph was an amendment. The provision allowing lawsuits against terrorists was actually a major change in a previously sacrosanct federal law that set strict limits on how much sway US courts—and Americans themselves—had over the activities of foreign governments.

  Named the Foreign Sovereign Immunities Act, the law spelled out a set of rules that blocked US citizens from filing lawsuits against foreign governments, except in very specific instances, such as certain business transactions. For example, if a business owned by a foreign government, say a Chinese government steel mill, failed to fulfill a contract to deliver an order of reinforced beams to build US highway bridges, then a US company would be allowed to file a lawsuit and possibly collect damages.

  The notion of offering immunity to foreign governments had been a cornerstone of international diplomacy for almost two centuries, though the concept was born thousands of years before, as governments and tribes across the world tried to fashion methods for handling disputes. The modern notion of immunity between nations was an attempt to establish a worldwide system—a concept of understanding—in which foreign governments would not be dragged into all manner of legal proceedings
.

  The amendment, which had been inserted into the legislation, offered a new legal twist on the concept of foreign immunity, however. If US citizens were killed or injured overseas, or even within the United States, by a foreign terrorist, lawsuits could be filed in their name in US federal courts to collect damages. But the new legal provision set limits on what nations could be sued. After months of legal and political wrangling, Congress decided to allow lawsuits to be filed only against nations that had been listed by the US State Department as state sponsors of terrorism. In 1996, this list had just seven names: Cuba, Iraq, Libya, North Korea, Sudan, Syria, and Iran. A State Department assessment, however, singled out Iran for special attention. In its 1996 report entitled “Patterns of Global Terrorism,” the State Department described Iran as “the premier state sponsor of terrorism” and the “most active.”

  The report listed a wide array of Iranian-sponsored terrorist activities, ranging from weapons smuggling and plotting assassinations to offering safe haven in Iran to terrorists from other countries and even ordering the death of the popular author Salman Rushdie. But one notation in the report would become especially significant, even provocative: a finding that Iran had offered money and training to terrorists who could disrupt the Middle East peace process by staging attacks in Israel. Three Middle East terrorist groups were named in the report as receiving Iran’s money and training—Hezbollah in Lebanon and Hamas and Palestinian Islamic Jihad in the West Bank and the Gaza Strip.

  Arline Duker and Len and Vicki Eisenfeld did not know about the State Department’s report on terrorism when they walked onto the South Lawn of the White House to watch President Clinton sign the Antiterrorism and Effective Death Penalty Act. They harbored only a vague idea of what sorts of powers were contained in the Act and how they might be affected.

  The AEDPA was something of a hybrid legal stew that had been simmering for years after being tinkered with by many cooks. Most experts agreed that the seeds for the Act were sown in a singular event that turned out to be the equivalent of a diplomatic earthquake—the seizure of the US Embassy in Tehran in November 1979 by Iranian dissidents who then held fifty-two Americans as hostages for 444 days. What came to be known as the “Iran Hostage Crisis” was a transformative moment, not just in US politics but in how America understood its ability to use power.

  Throughout the crisis, the powerful US military seemed impotent. What’s more, established rules of international diplomacy suddenly seemed uncertain, even irrelevant. The Iranian dissidents who leaped over the embassy walls and captured US Foreign Service workers and Marine guards had the overt support of Iran’s revolutionary government and its leader, Ayatollah Ruhollah Khomeini. And yet, the Iranian government not only declined to negotiate; it ignored accepted international customs that a nation’s embassy and its diplomats had special protection and even immunity from the host nation’s internal politics.

  During the 1980s, attacks by a variety of Middle East terrorist groups increased against unprotected civilians, not only in Israel but also beyond. A TWA jetliner was hijacked in June 1985 by operatives affiliated with the Lebanese-based Hezbollah party, and a US Navy sailor, Robert Stethem, was shot to death. In October 1985, an Italian-based cruise ship, the Achille Lauro, was seized by Palestinian gunmen and a wheelchair-bound Jewish-American tourist, Leon Klinghoffer, was murdered—his body and wheelchair dumped overboard into the Mediterranean as his wife looked on in horror. Then, in December 1985, the ticket counter at Rome’s airport was riddled with machine-gunfire by gunmen affiliated with the pro-Palestinian Abu Nidal group. Sixteen people were killed and ninety-nine were wounded, including a US diplomat.

  By the mid-1980s, the discordant politics of Lebanon had made that nation a terrorists’ breeding ground. Once again, Iran was in the forefront, notably by supporting the attack by Iranian-backed operatives on the US Marine headquarters at Beirut’s airport. Later, in the 1980s, Iranian-backed members of the Hezbollah terrorist group—and other fringe groups that had tacit Iranian support—began seizing westerners in Beirut and holding them captive. The hostages ranged from the Associated Press’s Beirut bureau chief, Terry Anderson, to a Marine officer, a CIA station chief, American college professors, and even a British church official who had volunteered to try to convince the hostage takers to release their prisoners.

  As aggravating and exasperating as these events were, three more events proved to be the most significant in pushing Congress to pass new antiterrorism legislation. On a night in December 1988, only days before Christmas, a bomb, planted by Libyan agents in a suitcase, blew apart a commercial jetliner in flight to America over Lockerbie, Scotland. The bombing of Pan Am Flight 103 was the most devastating terrorist attack on civilians in decades. All 243 passengers and sixteen crew members were killed along with eleven Lockerbie residents who died from falling debris. Many of the passengers were US college students on the way home from Europe after a semester of studies.

  Pan Am 103—or, as it became known, “the Lockerbie bombing”—sparked a movement that had not emerged even after the numerous terrorist attacks of the 1970s by Iranian, Palestinian and other Middle East operatives. Within a few months of the explosion, relatives of Pan Am 103 victims arrived in Washington, staging protests at the gates of the White House and Congress and demanding answers—and a plan of retaliation.

  Until then, the US government had seemed reluctant to use its massive military might to respond to acts of terrorism. After the 1983 bombing of the Marine encampment in Beirut, President Ronald Reagan did not order any retaliatory strikes against terrorist camps in Lebanon. Even when France, which lost fifty-eight paratroopers in a similar bombing of its Beirut barracks on the same day as the Marines attack, sent jet fighters to attack terrorist camps, Reagan declined to follow suit. Three years later, Reagan changed his mind. After Libyan agents set off a pipe bomb in a Berlin disco and killed two US soldiers, Reagan ordered US Navy jets aboard an aircraft carrier in the Mediterranean Sea to attack several targets in the Libyan capital of Tripoli. The attack was criticized for not striking any significant targets.

  In the wake of the Pan Am 103 bombing, the US military seemed equally hamstrung. No retaliatory attack was launched. The jetliner bombing became an FBI criminal investigation. Meanwhile, relatives of victims began to call lawyers, asking if they could file a lawsuit seeking compensation for their loss. The idea, while perhaps logical and even noble, had a key problem. US laws did not allow American citizens to sue foreign nations for acts of terrorism.

  Congress took up the debate. A variety of laws were proposed and languished. The problem was not so much a lack of support in the US Senate or House but a formidable opponent in the form of the US State Department.

  US diplomats feared that if laws were changed to allow Americans to file lawsuits against foreign governments, and perhaps to seize assets in the US such as foreign bank accounts or even foreign-owned businesses or other properties, that American assets overseas might be seized in retaliation.

  Then two more terrorist attacks took place. In February 1993, Islamic militants, who had been living in the United States and had come under the influence of a blind Egyptian cleric who openly called for America’s destruction—even though he had been granted political asylum in the US—set off a massive fertilizer bomb in the parking garage of New York’s World Trade Center. Only six people died but the attack was seen as yet another warning sign about the growth of terrorism.

  No laws were changed, however. It would take yet another terrorist attack to do that.

  On April 19, 1995, a disgruntled former US Army soldier, who harbored deep resentment against the US government, set off a fertilizer bomb outside the federal building in Oklahoma City and killed 168 people, including more than a dozen children in the building’s day-care center operated for the parents who worked there. The bomber, Timothy McVeigh, was not an Islamic jihadist; he proclaimed himself to be a Christian. But th
e attack on the Oklahoma City federal building seemed to send a clear message not only to Congress but to the White House that key laws needed to be changed to protect America from terrorist attacks.

  Within a month of the Oklahoma City attack, a proposed antiterrorism bill was drawn up by Senator Robert Dole, the Republican majority leader who was considered a frontrunner for his party’s nomination to run against Clinton in 1996. Dole’s bill worked its way through various committees. The result was a series of provisions that included limits on death penalty appeals by convicted terrorists as well as streamlined proceedings in deportation hearings of suspected foreign terrorists who were caught inside the US. In what seemed like a footnote, Senator Arlen Specter, the Pennsylvania Republican and former prosecutor, slipped a provision into Dole’s bill that allowed US citizens to file civil lawsuits against foreign nations where Americans had been killed in terrorist attacks.

  State Department lawyers worked feverishly behind the scenes to cancel out Specter’s provision. One concern by State Department lawyers was that allowing a blanket freedom to file lawsuits could result in court cases against some nations who were considered US allies but had nonetheless been accused of terrorism or of allowing terrorists to operate within their boundaries. But Spector, who was supported now by lawyers for families who lost relatives in the bombing of Pan Am 103, held firm. So the State Department proposed a compromise. Instead of allowing US citizens to sue any foreign government where an alleged terrorist act took place, why not allow lawsuits only against foreign nations that were singled out by the State Department as state sponsors of terrorism? Specter and his allies agreed. And when President Clinton stepped onto the South Lawn of the White House on April 24, 1996, to sign the Antiterrorism and Effective Death Penalty Act, the provision allowing for lawsuits applied to just the seven nations listed by the State Department, including Iran.