Bus on Jaffa Road

by Mike Kelly

  Flatow walked with his family along a twenty-foot aisle of thick forest-green carpet in the center of the courtroom, past five rows of oak benches, then guided his family into the front row and sat down.

  He thought of Alisa. When she was five years old, a neighbor accidentally drove a car over Alisa’s foot. Flatow had been trying to take a nap inside the family’s home in West Orange. But when he heard his daughter crying, he picked her up, put her in his car and drove to a hospital. In the backseat, Alisa moaned in pain, then stopped and asked her father, “Daddy why do these things always happen to me?”

  Flatow remembered fumbling for a word or two to comfort his daughter. He told her that accidents happen and that you can’t plan for them. Finally he said, “You just happened to be in the wrong place at the wrong time.”

  Since Alisa’s death on the bus in Gaza, Flatow often found himself recalling that car ride to the hospital and his words to Alisa. He began to mention the story in speeches about her, often to Jewish audiences who were conducting fund-raisers for schools in America or in Israel. “I think back to that little five year old in the back seat of the car,” he would say. “There will be times that things happen that you don’t understand. But this much I know. Because you were in Israel, studying the religion that you love and the land that you love and the people that you love, this time you were in the right place. And we all find our right places.”

  The courtroom was quiet that morning as Flatow thought about his case. He figured he had already spent tens of thousands of dollars of his own savings on court filings and other expenses associated with the lawsuit, including dozens of trips to Washington to lobby Congress for counterterrorism legislation and to meet with Perles or government officials. He knew Perles had assembled a strong case. Perles had even brought in one of Washington’s most experienced courtroom lawyers, Thomas Fortune Fay, to handle the opening and closing statements as well as question witnesses. Perles felt his skills were in shaping legal strategies and writing briefs; Fay was more adept at the verbal give and take during a trial.

  Flatow admired Perles for seeing his own strengths and weakness and in finding someone like Tom Fay who could fill in. Fay also understood how Flatow’s case was essentially not all that different from the kinds of personal injury lawsuits that are filed each day in courts throughout America. “It was a lot like any other lawsuit over a negligent death,” Fay often said.

  But it wasn’t an ordinary lawsuit, as Flatow knew. Yes, Perles and Fay had developed what they believed to be a solid argument—that Iran was responsible because its funds were used to train bombers and to assemble lethal explosives that caused the unnecessary and negligent death of an innocent woman. And, yes, Perles and Fay had skillfully constructed their arguments in briefs and in Lamberth’s court to parallel a standard personal injury case. But this was new legal territory. Six months earlier, the Cuban-American families of the Brothers to the Rescue pilots had been awarded $187 million in damages from frozen Cuban assets to compensate them for the deaths of their loved ones.

  The Brothers to the Rescue lawsuit against Cuba was based on the same clause in the Antiterrorism and Effective Death Penalty Act that allowed Flatow to file a lawsuit against Iran. Both Cuba and Iran were listed by the US State Department as state sponsors of terrorism. The size of the judge’s award—$187 million—seemed remarkable. But Flatow knew that being told by a judge they were entitled to the money was not the same as collecting it. The US government was already attempting to block the families of the Brothers to the Rescue victims from claiming some of Cuba’s financial assets that had been frozen in US banks years earlier.

  Flatow watched in silence as the lawyers studied their papers and Judge Lamberth settled into a chair behind the raised oak bench over which hung a large seal of the United States. For months, Flatow felt that the process of filing court papers and talking to his lawyer had been cathartic—an imperfect way to soothe his enduring pain over Alisa’s death but nevertheless a process that helped him to channel his grief. He wondered if Judge Lamberth would offer another form of catharsis.

  Just after 10 a.m., Lamberth’s clerk announced, “Civil Action 97-396. Stephen M. Flatow versus Islamic Republic of Iran.”

  Judge Lamberth looked across the courtroom. “All right. Mr. Fay, are you ready to proceed?”

  Every trial has different phases. In many criminal trials in which a defendant is accused of a serious crime such as murder or robbery, the first step is for the defense and prosecution lawyers to agree on the composition of a jury. As the trial begins with opening statements by the opposing lawyers, the jury listens as the prosecution presents its evidence, after which the defense has an opportunity to respond. Even when a defendant forgoes a jury trial and chooses instead to allow a judge to hear all the evidence and reach a decision on guilt, both the prosecution and defense have opportunities to cross-examine witnesses and offer challenges on all manner of documents or other items offered as evidence.

  The civil lawsuit by Stephen Flatow against Iran took a very different course. There was no jury—only Judge Lamberth would weigh the evidence and reach a decision. But what made the Flatow trial so uncommon was the refusal by the defendant—Iran—to come to court. As a result, Judge Lamberth and Flatow’s attorneys knew ahead of time that there would be no challenges to the evidence, no cross-examining of witnesses. It was as if Judge Lamberth’s courtroom was the stage for the Flatow family and its lawyers to tell its story and point an unchallenged finger of blame at Iran.

  Lamberth was aware of how unusual the case would be. So were ­Perles and Fay. Iran’s absence was worrisome to the judge and to Flatow’s lawyers, not just from a legal perspective but also from the message the trial would send to the world. If America was putting Iran on trial for terrorism, shouldn’t Iran be in court to answer the charge? That seemed only fair, and Lamberth hoped for that. He knew that Iran had hired American attorneys in the past when facing civil lawsuits in US courts over such questions as business deals that had not been completed. Lamberth also knew that he had the right to conduct a trial without Iran and that he could make a decision and have it upheld on appeal. Certainly, plenty of provisions and precedents in US law allowed for judges to make decisions even when one party in a lawsuit refused to participate. So after waiting months for Iran to respond, Lamberth decided to move forward with the trial. He declared that Iran had defaulted.

  Tom Fay sensed the weight of the moment, and the global significance of the trial itself, as he rose from his chair to make an opening statement. He needed no reminder of Iran’s absence; the oak table where Iran’s lawyers would have sat was empty.

  Fay began: “Your honor, we are here because on April 9th of 1995, Alisa Flatow, an American citizen, sustained what proved to be fatal injuries in an attack by a suicide bomber in the Gaza Strip area of Israel. The evidence will demonstrate that this went far beyond even the intentional killings that sometimes come before this court in murder cases. This was truly a slaughter of an innocent and others—I should say, innocents—to achieve a political end. . . .”

  “As your honor knows,” Fay continued, “this is truly an epochal case.”

  Minutes later, Stephen Flatow took the witness stand.

  Fay began what what he considered a basic question: “Mr. Flatow, you were the father of Alisa Flatow?”

  “No,” Flatow answered.

  Fay seemed dumbfounded. Then Flatow continued, “I’m still her father.”

  The brief exchange set the tone for what was to come. While emotional and deeply distressing, the first day’s testimony with the Flatow family and others was actually some of the most effective for Fay and Perles to present. Flatow was the star witness whose testimony would not only help to frame the tragedy of Alisa’s brutal death but underscore the continuing pain that had enveloped the entire family. As a lawyer, Flatow understood the significance of firsthand testimony. Equally import
ant, he was comfortable sharing his feelings in court, especially how much he loved Alisa, and how painful it had been to him, his wife, and their children that she had died so violently.

  On that first day, Fay called on one of Alisa’s friends who had been with her on the bus to describe the shock of seeing her friend slump over, eyes wide open and her hands clenched. Fay also played a video, taken by an Israeli who lived near the Gaza Strip bomb scene, which showed paramedics trying to treat Alisa and placing her on a helicopter to be taken to a hospital. Finally, Fay called a forensic pathologist to the witness stand, who reviewed Alisa’s autopsy reports and testified how shrapnel from the bomb had sliced into her brain.

  But if any piece of testimony encapsulated the painful underpinnings of this case, it was Stephen Flatow’s statement: “I’m still her father.”

  To Flatow, those were not empty words. He believed that his fatherly duty required him to pursue justice for his daughter and that her death had not ended his commitment to her.

  As he listened that first day, Judge Lamberth felt tears come to his eyes several times. “Any judge is a human being first,” he said later. “You cannot sit through that kind of testimony and not be drained at the end of the day.”

  But, as a father himself, Lamberth was especially drawn to Flatow’s sentiments about Alisa. “It’s tough to see that family suffer the way they did, with this young college girl who never did a thing wrong in her life. She could be my daughter or anybody’s daughter,” Lamberth said. “Nobody deserved to die in the awful way that she did die.”

  As important and moving as Flatow’s testimony was in proving that Alisa had needlessly perished in a terrorist attack, Lamberth needed solid proof about Iran’s possible connection. “There was no question about the injuries,” Lamberth said years later. “The only question was whether Iran was behind it.” Perles and Fay knew that too. If they were to convince Lamberth to hold Iran accountable, they had to present evidence that was compelling, convincing, and conclusive.

  In shaping their legal strategy, Perles and Fay were not so much worried about whether Iran responded to the lawsuit. In this first legal test before Judge Lamberth, Perles and Fay knew they must show a definitive link between Iran and Palestinian terrorism. If Perles and Fay could not find that link, the entire lawsuit would collapse, no matter whether Iran’s representatives showed up in court and no matter how emotional and tragic the testimony about Alisa Flatow’s death was.

  On the first day, amid the testimony of Stephen Flatow, Perles and Fay played a video recording of testimony by an Israeli expert, Reuven Paz, who was regarded as one of the best-informed experts on Palestinian terrorism. A former official with Shin Bet, Paz was one of the first to conclude that such militant groups as Hamas and Palestinian Islamic Jihad had strong ties to Iran.

  But Perles and Fay needed something more.

  Washington is not just the epicenter of American politics. It is home to one of the greatest collections of news and information junkies in the nation, perhaps in the world. Besides thousands of journalists who cover every cul de sac of the sprawling federal government, there are swarms of media monitors, ranging from government officials and lobbyists to academics and researchers at think tanks, who spend hours each day consuming the steady torrent of information presented in all manner of newspapers, magazines, blogs, newsletters, and websites, as well as TV and radio programs. To outsiders, this world can seem insular, perhaps incestuous—a swarm of Washington-focused journalists producing a daily information buffet for a ravenous Washington audience of insiders. The sheer amount of statistics, budgetary figures, and assessments can seem so overwhelming that even important information is routinely overlooked. But sometimes what may seem to be the most inconsequential of tidbits suddenly leaps forth and sheds new light on a particular subject.

  This is essentially what happened when Patrick Clawson, an economist with a budding interest in how terrorists spend money, decided to study the annual budget for the Islamic Republic of Iran.

  Even in Washington, with its diverse spectrum of experts on all manner of arcane subjects, Clawson was an anomaly. He was one of the few researchers in Washington (outside of the CIA and other intelligence agencies) who could read Farsi—the language of Iran, sometimes merely referred to as “Persian.” Born in 1951 just over the Potomac River in Alexandria, Virginia, Clawson left the government-focused Washington area for college (Oberlin) and graduate school (the New School for Social Research in New York City). His specialty was not politics, but economics. After teaching for several years at Seton Hall University in northern New Jersey, he returned to Washington in the 1980s as an economist at the International Monetary Fund, with a focus on the Middle East and a growing interest in the finances of terrorism.

  Clawson had picked an important time to study Middle East terrorism. From Lebanon to Libya, barely a week passed without a new report of a terrorist attack. Palestinian attacks on Israeli civilian targets increased. Iran had begun to play a more active role. Only five years earlier, Iranian militants, spurred by an Islamic theology of revolution, had gained control of their own country, deposing the Shah and his corrupt, brutal regime and seizing the US Embassy and holding almost five dozen Americans hostage for more than a year.

  Now those same spiritual and political militants actively sought to play a greater role in the entire Middle East, especially in Lebanon where Iranian-backed operatives affiliated with Hezbollah attacked the US Marine encampment in Beirut in 1983. Not only was Iran openly supporting Hezbollah, but American intelligence officials and others found proof later introduced in another lawsuit before Judge Lamberth, that Iran ordered the attack on the Marines.

  In 1985, Clawson left the International Monetary Fund for a similar position at the World Bank. Later, he worked at the Foreign Policy Research Institute in Philadelphia, and at the National Defense University and the Institute for National Strategic Studies in Washington. By the early 1990s, Clawson joined the Washington-based Institute for Near East Policy, a think tank that monitored the political tidal flows in the Middle East and, in particular, the Israeli-Palestinian conflict. Clawson’s primary interest was not necessarily Israel, though. He spent most of his time studying Iran and specifically the link between Iran’s money and global terrorism.

  Clawson made a practice of reading as many Iranian government documents he could get his hands on and even listening to radio coverage of debates within the Iranian parliament. Since 1983, he regularly read two Farsi-language newspapers each day. As an economist, he felt that if he could understand how the Iranian government spent its money, then he might have a better sense of what Iran’s political and spiritual militants were thinking, especially when it came to Iran’s overall strategy as a power player in the Middle East and financier of terrorism.

  Clawson also made a point of studying the annual Iranian government budget. And in the course of reading the budget for the fiscal years of 1992–1993 and 1993–1994, he happened to notice what he felt were a series of suspicious expenditures. The Iranians openly listed figures for how much financial support they offered to Palestinian revolutionary organizations. That these expenditures were publicized at all was not especially shocking to Clawson. By the standards of other Middle East nations, Clawson found Iran to be far more open with information than many Western nations thought. In the course of monitoring Iranian newspapers and radio reports, for instance, Clawson discovered that Iranian officials—especially members of the Iranian Parliament—openly discussed allocations for various revolutionary causes. Beginning in 1992, Clawson decided to pay close attention to Iran’s support for Palestinian Islamic Jihad—in particular the faction run by Fathi Shaqaqi.

  Clawson started to connect the dots. Iran’s government was dominated by Shiism, the Islamic branch that had embraced suicide bombing as a form of martyrdom. Until the 1990s, Palestinians, who largely adhered to the Sunni branch of Islam that banned suicide
as a form of martyrdom, had not been involved in suicide attacks. But as the 1990s unfolded and especially after hundreds of Palestinian operatives from Hamas and Palestinian Islamic Jihad were deported to camps in Lebanon run by the Iranian-supported Hezbollah group and its Shiite followers, Clawson noticed a shift in terrorist tactics. More Palestinian militants were choosing to volunteer as suicide bombers. Was this linked to Iran and its Shiite theology of martydom?

  Clawson figured the Iranians were playing some sort of role in this sharp change in Palestinian strategy. While other analysts figured the shift was largely theological—from a Sunni-based spirituality, which banned suicide as a form of martyrdom, to Shiism, which honored it—Clawson saw clear monetary connections. If Iran was making significant financial gifts each year to the cause of Palestinian liberation, would it be too much of a leap of logic to assume that Iran could be held responsible for Palestinian terrorism attacks?

  Clawson felt such a link was not only logical but deeply dangerous, with profound potential consequences for the future of peace between the Israelis and Palestinians. If Iran was promoting suicide terrorism by Palestinians, surely that would loom as an impediment to the Oslo peace accords and the roadmap for peace.

  By the mid-1990s, Clawson still had trouble finding a friendly audience for his concerns about Iran’s meddling in the Israeli-Palestinian conflict. It’s not that US and Israeli intelligence analysts were unaware of Iran and Shiite theology of martyrdom. Certainly, US Ambassador Martin Indyk felt that Iran was attempting to disrupt the Oslo process and even play a greater role in Palestinian strategy. And when called as an expert to testify before a variety of Congressional committees, Clawson found that he was invariably asked about the growing influence of Iran. But many officials in the US and in Israel still believed that the Palestinian leadership would steer clear of too much influence by Iran. After all, even the most radical elements of Hamas and Palestinian Islamic Jihad had deeper roots in Egypt’s Muslim Brotherhood and its Sunni-based theology. And among Sunni Muslims, Iranian’s Shiite-based politics was largely distrusted.