by Mike Kelly
Then, there was Salameh himself. Katz looked for signs that Salameh felt any remorse for the forty-six lives he had taken in the three bombings. But Katz found no hint of regret or contrition. “Hassan Salameh was full of hate,” he said. “I don’t think he really cared whether he killed women or children. As long as he could kill as many Jews as he could, it was sufficient.”
Katz began the sentencing hearing by summarizing the charges against Salameh; he pointed out that Salameh asked for the death penalty.
“There is no doubt that this is one of the most severe cases that has ever been brought before a judicial institution in the State of Israel,” he said. He then mentioned another horrific attack years earlier in which thirty-four people had been killed. “Regrettably that record has been broken,” Katz noted. “Forty-six persons lost their lives and let us not forget the many injured too. Every victim and every casualty is part of a family whose life has been changed and will never be as it was before the attack.”
“The judges are unanimous that the acts of the defendant are very severe, lowly, repugnant and worthy of every condemnation and that the murderous conduct of the defendant, who is trying to add his own ideological pretext to the acts, is the behavior of a person that every human society must expel from within it.”
Salameh’s attacks were aimed specifically at Israel—and Jews, Katz continued. “Whoever aims to kill and massacre indiscriminately women, men, and children just because they are Jewish has excluded himself from man who was created in the shadow of God and cannot purport to be the protector of his people’s rights.”
But Katz also pointed out that not all of Salameh’s victims were Israeli citizens or Jewish. “In the eyes of the defendant,” Katz said, “the identity of the victims was of no consequence and, indeed in the attacks, foreign workers and an Arab resident also found their deaths.”
Katz paused. While the judges agreed on Salameh’s guilt and the horrific nature of his actions, they disagreed over how to punish him. Two judges favored a sentence of life in prison. A third judge called for the death penalty.
In Israel, when judges disagree on the type of sentence, they take a vote—and the majority wins. But they also take a vow: The judges do not disclose who favored the different sentencing options.
In the trial of Hassan Salameh, the identity of the lone judge who favored Salameh’s execution has never been disclosed. Even after almost two decades, Katz declined to say how he voted or which of the three judges in Salameh’s trial felt the death penalty was appropriate. “In our legal system,” Katz said, “we are not supposed to tell which judge decided what kind of decision.”
At the trial, Katz read the tribunal’s majority opinion—that Salameh receive forty-six consecutive life sentences. But he did not want to end the proceeding without commenting on the death penalty that Salameh requested and that one of the judges wanted to impose.
“It is common after referring to the name of a victim of a murderous terrorist attack to add, ‘May the Lord avenge his blood,’ ” Katz said. “This is no accident, as we believe that revenge and payback, in the sense of an eye for an eye and a tooth for a tooth, is divine retribution that exceeds the power of the mere mortal and [is] a matter for the Lord in heaven to deal with, while us meager humans try to express the extent of the atrocity, repulse, and condemnation of the acts of the defendant by sentencing him to life imprisonment for murdering each and every person who found his death in the attacks.”
The hard task of judges, said Katz, was to distance themselves from “hot instinct and to adhere to cold discretion.” He pointed out that Salameh’s “greatest wish is to prevent the process of reconciliation between Israel and the Palestinians” by staging terrorist attacks. “What would be “fitting” would be for Salameh “to rot in prison until his last day and to see with his own eyes how his desire is cast into the wind and the process of reconciliation between the peoples slowly materializes.”
Katz then began to recite a litany of victims’ names and the sentence Salameh would receive for each death.
He began with Sergeant Yonatan Barnea, the twenty-year-old son of Israeli journalist Nahum Barnea. “Life imprisonment for causing the intentional death,” Katz said. Next, he mentioned Arik Gaby, a sixteen-year-old cadet at the Israeli Air Force technical school. And Israeli Army Private Sharon Hanuka, twenty, who was scheduled to finish her military service in five months. And Army Corporal Merav Nachum, nineteen, who had enlisted only three months earlier. And a married couple, Jana Kushnirov, thirty-six, and her husband, Anatoli Kushnirov, thirty-seven, who emigrated from Ukraine three years before and left behind an eight-year-old son and a five-month-old daughter.
Katz pointed out that Boris Sharpolinsky, sixty-four, died on his way to work; that Peretz Gantz, sixty-two, had escaped from the Nazis as a boy during World War II; that Daniel Biton, forty-two, a gardner, was a father of three; that Masuda Amar, fifty-nine, was a grandmother of five; that Wael Jumah Kawasmeh, twenty-three, a Muslim from East Jerusalem, was due to marry in a month.
Then, Katz came to Matt Eisenfeld and Sara Duker. “Two cumulative life imprisonments for causing the intentional death” of Matt and Sara—“a Jewish couple from America who were about to marry, their tragic deaths uniting them forever.”
Salameh did not speak. As Katz looked out on the court, Salameh showed no emotion as the names of the dead were read one by one, in each case preceded by the words, “life imprisonment.” As he finished, Katz allowed the opinion of the dissenting judge to be read.
“I regret that in this case I cannot concur with the opinion of my learned colleagues,” the anonymous judge wrote. “I believe that the abominable acts of the defendant necessitate in this case the imposition of the maximum sentence prescribed in the law, namely death.”
“In the end there is no escaping asking the terrible but necessary question, which is: If this is not a case in which the death sentence is fitting, then what has to happen?”
The judges never answered that question. They were not required to.
Later that day, Hassan Salameh was taken to an Israeli prison. As he thought about Salameh later, Katz said he felt uneasy at what transpired in the courtroom in Beit El.
“I don’t think Salameh will be rotting in jail,” Katz said. “I think that there will come a day in which somebody will decide to release him.”
Judge Katz was half right.
Hassan Salameh would stay behind bars. But he would neither rot nor keep silent.
Part III
Recovery
Chapter 10
At the base of Capitol Hill in Washington, DC, the US District Courthouse stands as a silent, symbolic sentinel overlooking the intersection of two of the city’s great thoroughfares, Constitution and Pennsylvania Avenues, which link Congress and the White House and the political and legislative tides that pass between them.
The federal judges inside the courthouse do not have the luxury of choosing their cases. Nor do they always know ahead of time whether a new law passed by Congress at one end of Constitution and Pennsylvania Avenues and signed by the president in the White House at the other end may be put to the test with a case inside one of their courtrooms. But in early 1997, as Israeli military Judge Ilan Katz prepared to preside over the murder trial of Hassan Salameh in the West Bank community of Beit El, an American judge at Washington’s federal courthouse began to focus his attention on another terrorism case that would become the template for efforts by Arline Duker and Len and Vicki Eisenfeld to find out who killed their children.
US District Court Judge Royce C. Lamberth was less than thrilled to discover that he would be handling a lawsuit filed by Stephen Flatow against the Islamic Republic of Iran. Lamberth, a fifty-three-year-old Texan and former federal prosecutor who had been appointed to the federal judiciary a decade earlier by President Ronald Reagan, did not especially like the Flatow case and, in
particular, what he viewed as its risky constitutional implications. As a constitutional scholar, Lamberth felt that the Antiterrorism and Effective Death Penalty Act, which was the basis for Flatow’s case, contained fundamental flaws, especially its provision allowing US citizens to file lawsuits against nations that had been labeled as state sponsors of terrorism.
Lamberth certainly believed in maintaining a strong defense against terrorist attacks. A year earlier, US Supreme Court Chief Justice William Rehnquist appointed Lamberth as the presiding judge of the US Foreign Intelligence Surveillance Court, the top-secret judicial body that issues search warrants on behalf of the National Security Agency and the FBI to monitor suspected spies or foreign terrorists. But Lamberth also believed that the US Constitution clearly stipulated that foreign affairs—and especially the government’s response to the murders of Americans overseas by organized terrorist groups with ties to nations such as Iran—were the explicit domain of the president.
It was not the job of America’s federal judges, Lamberth felt, to conduct foreign policy and punish other nations who orchestrated attacks on US citizens. Lamberth believed that job was clearly in the hands of the president—and with Congress if a formal declaration of war was proposed. “The Constitution gives the president great power in foreign affairs,” Lamberth later said. “I don’t want to infringe on his power.”
What also concerned Lamberth was the possibility that, in a lawsuit against Iran or another nation that had been labeled a terrorist state, a ruling by him could later interfere with the president’s ability to conduct diplomatic negotiations. “For a judge to get into the middle of that is very difficult,” he said.
Lamberth was not alone in his concerns. As the Antiterrorism and Effective Death Penalty Act was debated in the US Senate and in the House of Representatives, lawyers from the State Department warned that the new law could impinge on all sorts of foreign diplomacy. But after watching the number of terrorist attacks against Americans increase during the 1980s, Congress had become fed up with the lack of a response by the White House, the State and Justice Departments, and even the US military. Perhaps multimillion-dollar lawsuits against Iran and other terrorist nations would send a more effective message.
Lamberth knew the politics well, in particular the interplay between the attempts by lawmakers in Congress to weave together solutions and the equally noteworthy concerns by officials in the State and Justice Departments to put them into practice. Even though he was born in San Antonio, Texas, and had earned his undergraduate and law degrees from the University of Texas, he had spent most of his professional career in Washington. After serving as a lawyer in the US Army’s Judge Advocate Corps, including assignments in Vietnam and at the Pentagon, Lamberth worked as a federal prosecutor in Washington for more than a decade before donning his black judicial robes and taking his place at the US courthouse. Although he harbored lingering worries about the antiterrorism legislation and the possibility of more lawsuits like Stephen Flatow’s, Lamberth also knew he had taken an oath to uphold all US federal laws, even if he did not like them. So, when the case file for Flatow’s lawsuit against the Islamic Republic of Iran landed on his desk, he dove in and began to explore its complexities. It was the beginning of almost two decades of legal work by Lamberth on cases by US victims of overseas terrorism.
Tall and blessed with a laconic Texas drawl that made even his most difficult rulings sound comforting, Lamberth would come to realize that he was perfectly suited for the Flatow case despite his misgivings about the law it was based on. He was skeptical and thorough, as well as a careful listener who did not lose his patience easily, as some judges did. As Flatow and his chief lawyer, Perles, would soon discover, Lamberth would also prove to be surprisingly open to fresh legal ideas.
Perhaps Lamberth’s most telling gift was rooted in his experience as a federal prosecutor years earlier. He knew firsthand the deep and long-lasting pain of crime victims. Even before he met Flatow in his courtroom, Lamberth could sense how wounded he was by the loss of his daughter.
As Lamberth began routine meetings on the Flatow case in the spring of 1997, he discovered an unexpected problem. The target of Flatow’s lawsuit, Iran, and a variety of its leaders named in the lawsuit, including Iran’s Supreme Leader, Ayatollah Ali Hosseini Khamenei and its president, Ali Akbar Hashemi-Rafsanjani, had not acknowledged receiving a copy of the lawsuit. After filing the lawsuit at the federal courthouse in Washington, Perles tried to send a copy of the lawsuit to Iranian authorities—a standard courtesy that allows the target of the lawsuit to hire an attorney and file the necessary papers to answer and perhaps challenge the lawsuit.
With no American diplomats in Iran—the US Embassy in Tehran closed in 1979 and never reopened—Perles reached out to the Swiss government, which represents US interests in Iran. Eventually, a package containing a copy of the Flatow lawsuit was delivered to the Iranian government, Perles said. The envelope had been opened, then resealed, and the package was returned to Perles—with no message.
Weeks passed. Iran’s government had not hired lawyers as it had done in previous, non-terrorism civil cases in the United States. Nor had it bothered to send even a brief message of protest to Judge Lamberth indicating that it would not show up in court. Lamberth found Iran’s behavior to be highly unusual. In almost every instance, the target of a lawsuit hires an attorney or at least contacts the judge to ask for help finding an attorney or to complain about the unfairness of the lawsuit. None of that happened in the Flatow case. Iran simply ignored the lawsuit.
Flatow still faced another vexing problem with his case. Like Len and Vicki Eisenfeld and Arline Duker, Flatow, guided by Perles, had been searching for solid proof that would connect Iran to the bombing that killed Alisa. Several high-ranking US officials told them that Iran was linked to the attack. But how? Where was the evidence of such a link? Flatow and Perles knew that the Gaza-based militant group Palestinian Islamic Jihad had claimed responsibility for the suicide bombing of Alisa’s bus. However, the new antiterror law signed by President Clinton stated clearly that the only targets of lawsuits could be a limited group of nations, including Iran.
Yet the opinions of intelligence experts about Iran’s complicity, while certainly important to the policy strategists at the CIA, Congress, and the White House, did not provide the kind of conclusive proof needed to win a lawsuit. And without Iran even acknowledging the lawsuit, Flatow and Perles had little hope of questioning Iranian officials about their connection to Palestinian terrorist activities.
The State Department’s acting counterterrorism chief, Kenneth McKune, had already been helpful. His letters to Len Eisenfeld, especially the one with a reference to the State Department’s report about Iran’s support of terrorist groups, was significant. But even the report, backed up by a letter written by such a key figure in America’s counterterrorism efforts, lacked the kind of solid proof Flatow and Perles needed—and that Lamberth would surely demand.
Meanwhile, Arline Duker and Steven Flatow decided on another strategy to draw attention to the deaths of their children. Along with US Senator Frank Lautenberg of New Jersey, they signed a letter asking Palestinian Authority President Yasser Arafat to “stop the violence” that was growing in the Gaza Strip, throughout the West Bank and within Jerusalem itself and to cooperate with Israeli police in trying to stop terrorist attacks before they happen. The letter, delivered in person to Arafat by US Secretary of State Madeleine Albright, was never answered. Six weeks earlier, a suicide bombing orchestrated by Hamas militants in a downtown Jerusalem market near Jaffa Road killed sixteen people and injured another 178. A month after that, at another market near Jaffa Road, three suicide attackers recruited by Hamas set off bombs that killed five people and injured 181.
A few weeks after Flatow filed his lawsuit, Perles met with Leonard Eisenfeld at Reagan National Airport to discuss the pros and cons of going to court. In midsummer 1997, Flatow i
nvited Arline Duker and the Eisenfelds to his home in West Orange, New Jersey, for a barbecue and more discussions about legal action. Besides the cost of mounting a legal challenge, Arline, Len, and Vicki worried about the results. Flatow painted a bleak picture: He did not expect a large windfall of cash from Iran in compensatory or punitive damages. He also did not expect a quick decision. “I expected it to be dragged out,” Flatow said.
He couldn’t have been more wrong.
Just after 9 a.m. on the first Monday in March 1998, Stephen Flatow stepped off an elevator on the fourth floor of the US District Courthouse in Washington. His wife, Rosalyn, walked with him, along with his son, Etan, and his daughters, Gail and Ilana. (The Flatows’ other daughter, Francine, was traveling in Israel on a study program before entering Brandeis University.) As instructed, the family followed the hallway to Courtroom 21.
For weeks, Flatow had nurtured two conflicting feelings about this moment—a numbing fear of the pain that might boil up inside him when reminded of Alisa’s murder and the long-anticipated satisfaction that he might finally be able to hold her killers accountable in some way.
It was a courtroom without windows. And Flatow noticed as he walked through the bronze doors that the courtroom was virtually empty. Only a handful of spectators and journalists showed up. With Washington’s media focused on the brewing controversy over reports of President Clinton’s sexual affair with a White House intern, the Flatow lawsuit against Iran had slipped off the radar screen.