Bus on Jaffa Road

by Mike Kelly

  If that was the case, however, why would the Palestinians accept Iranian money for their “liberation”? Why would more Palestinian terrorists embrace the Shiite-based theology of suicide martyrdom?

  Clawson discovered plenty of evidence in Iran’s budget. Besides the expenditures specifically earmarked to the Palestinian revolution, Clawson found signs of a variety of other payments that were not as clearly defined. These included what Clawson assumed to be allocations to families of suicide bombers and the funding of the organizational infrastructure of the terror groups, including salaries for its members. Finally, Clawson found other funds that were given to Palestinian charitable groups with ties to the terror groups.

  He was not satisfied. “We can assume that those figures may have been an understatement, that there were also secret accounts, what we call in the US government ‘black accounts,’ ” Clawson later said.

  Next, Clawson studied reports from other intelligence services, including the US, Israel, Egypt, Jordan, and Lebanon. What he found was a broad consensus of opinion that Iran was certainly contributing money to Palestinian terrorist groups.

  Clawson came up with an estimate, or a range of amounts. But even his lowest estimate was far higher than the $2 million to $3 million cited by Kenneth McKune in his letter to Len Eisenfeld.

  Clawson figured the Iranians were donating between $50 million and $100 million a year to all Palestinian revolutionary activities—with about $75 million earmarked directly for terrorism.

  Despite his careful reasoning and meticulous research, Clawson had trouble gaining the attention of American and Israeli intelligence analysts or even the most anti-Iranian political figures in the federal government. In the mid-1990s, most of Israel’s focus was on Yasser Arafat and the Palestinian Authority—the governmental power in the Gaza Strip and within the West Bank—with the belief that the Oslo peace process might finally resolve the Israeli-Palestinian conflict. Hamas and Palestinian Islamic Jihad, the primary groups receiving money from Iran, were considered dangerous, but certainly not as fearsome as they would become. Clawson discovered that even those American officials who distrusted Iran were not so alarmed at the growth of Iranian financial support in Palestinian affairs. “Why would they?” Clawson said. “If you shoved a complete and detailed report under the noses of many intelligence officials, they would have probably ignored it.”

  But Clawson found at least one person in Washington willing to pay attention to his concerns about Iran.

  In early 1997, Steve Perles contacted Clawson and told him he was planning to file a lawsuit on behalf of Stephen Flatow against Iran, based on the newly enacted legislation signed by President Clinton.

  Clawson did not like the new law. As a scholar, with a particular focus on international economics, he feared, as others did, that filing lawsuits against foreign governments could set off a chain of retributions against America and its overseas properties. In studying Iran, Clawson remembered all too well how the Iranian hostage crisis crippled the US government. Would the Iranians—or other foreign nations—seize other US property or even the private holdings of American citizens as retaliation against lawsuits?

  Clawson preferred that international disputes, including questions of terrorism, be handled by diplomats or, in the worst cases, by military intervention. “Instruments of statecraft are more appropriate and effective than the courts,” he said.

  Nevertheless, Clawson agreed to help Perles.

  Just after one o’clock in the afternoon of the second—and final—day of testimony in Flatow’s lawsuit, Patrick Clawson took the witness seat in Judge Lamberth’s courtroom. After guiding Clawson through his extensive academic credentials and the fact that he focused much of his attention on reading Iranian newspapers as well as almost any Iranian government document he can get his hands on, Tom Fay asked Judge Lamberth to accept Clawson as an expert on Iran’s link to Palestinian terrorism.

  Lamberth agreed.

  Minutes later, Fay got to the heart of what he wanted Clawson to discuss. “Have you done a study also of the extent of Iranian financial support generally for terrorism during this 1995 period?” Fay asked.

  “Yes, sir,” Clawson said.

  Clawson outlined the various pathways by which Iran funnels money to Palestinian groups. He then described his sources of information, which ranged from “the Iranians themselves” to statements made by terrorist groups and reports by a variety of intelligence agencies in the US, Israel, Egypt, Jordan, and Lebanon. Finally, he cited some numbers, the dollars that Iran contributes to terrorism.

  On the low end, Clawson estimated “around $50 million a year.” But because the contributions from Iran to terrorism often rose and fell with the ebbs and flows of the Iranian economy, Clawson said the figure was often higher. “I’ve never seen anything above $200 million,” he cautioned. Within those high-low parameters, Clawson found that the “usual range of estimate that’s given is $50 million to $100 million a year”—with an annual average of about $75 million.

  Fay paused. On its face, this was an astonishingly high figure for the Iranians to contribute to the Palestinians. With his measured tone and precise style, Clawson had produced what Fay—and Perles and ­Flatow—hoped would be a key link in showing that Iran played a major role in Alisa’s death. Clawson had not been able to show that Iran specifically ordered the bombing of Alisa’s bus. Nor had he shown that Iranian money paid for the bomb that killed her. But Clawson’s message was undeniably strong: Without Iran’s money, Palestinian militants might never have been able to build the bombs that killed Alisa and others in terrorist attacks. What’s more, the Iranian financial contributions to Palestinian terrorist activities were so high that they demanded some sort of response, even if Iranian operatives played no direct role in Alisa’s death.

  In citing those dollar figures, however, Clawson had also provided Judge Lamberth with a general framework for awarding damages to the Flatow family—if, of course, Lamberth concluded that the case for Iranian complicity was clear.

  Fay then turned to another line of questions: Would Iran change its terrorist activities in the face of economic pressure?

  Fay’s implication was clear. A major goal of the Flatow lawsuit was not just to punish Iran for one bombing but to impose a large enough financial penalty that Iran would change its ways and stop funding other terrorist activities, not just among the Palestinians but elsewhere, too.

  Clawson cited two examples of how Iran changed its policies in the face of financial pressure. The first was the seizure of American hostages at the Iranian embassy in 1979 and diplomatic discussions of how they would be released. “The issue which quickly became the centerpiece of negotiations was money and exactly how much money would Iran get back that the United States had frozen,” Clawson said. The second example was the seizure of US hostages during the 1980s in Lebanon. “What quickly became the centerpiece of Iranian demands was US action on frozen assets,” Clawson said.

  In return for gaining the release of the embassy hostages, Clawson said, the US government paid Iran “on the order of $8 billion” in Iranian assets that had been frozen after the hostages were seized. In return for the release of the US hostages who had been seized in Lebanon, Clawson said that Iran received “several hundred million dollars.” But he noted that the payment was not the amount that the Iranians had hoped for.

  Fay paused again, then turned to Clawson.

  “In your opinion, and again within a reasonable degree of certainty, is it valid to take this experience as a starting point from which this court, or anyone considering the question, may consider the appropriate amount which would deter Iran from further actions such as the action at Kfar Darom in which Alisa Flatow was killed?”

  “Well, certainly,” Clawson said. “I would say that these two episodes illustrate a pattern of behavior in which Iran has been responsive to monetary concerns.”

>   Clawson’s message was undeniable: For Iran, money talks. But how much would it take for Iran to pay attention?

  Perles and Fay knew that they not only had to show how much money Iran contributes to terrorist activities, or, at least, to put forth a believable estimate, they also had to offer a framework that Judge Lamberth could use in determining how large Iran’s financial penalty should be.

  Fay returned to Clawson’s earlier estimate that Iran contributes an average of $75 million each year to Palestinian terror. It was a critical moment, a not-so-subtle turning point. Fay knew that in any personal injury trial, especially one involving a negligent death, that he had to offer the judge an idea of what that financial penalty might be, not only as a proper punishment but as a potential deterrent. If the monetary figure was too high, a judge might disregard it—and reject other key testimony as being too exaggerated. A low figure might open the door to a paltry ruling.

  “Doctor, can you give us an opinion with regard to a multiple of $75 million you’ve estimated as the bill, the tab for terrorism by the Iranian government, which then might deter Iran from further action?” Fay asked Clawson.

  “Well,” said Clawson, “the higher the multiple, the more sure we can be that they will be deterred. In other words, if you tell me that the multiple is going to be ten, I can tell you that I’m going to be extremely confident that the Iranians are deterred. If you tell me that the multiple is only going to be one, I would say, well, I don’t know. You’re running a much higher risk.”

  Fay pressed on: “What, in your opinion as an expert, seems reasonable?”

  Clawson delicately mentioned two scenarios. In doing so, he waved a nuanced flag of caution. Penalizing Iran “with a multiple that’s more in a range of two to five” times the $75 million allocated for terrorism would be effective—in effect, a financial penalty of $150 million to $375 million for killing a US citizen. Such a penalty “would really change the debate in Iran about whether this is worthwhile doing—this being attacking Americans.” Then, Clawson switched gears.

  “If you ask me what it’s going to take to deter Iran from engaging in any terrorist attacks, I’m going to tell you it’s going to take a whole lot more,” Clawson said. “Then you’re going to have to have a much higher sum because then you’re establishing a much more ambitious target. To get Iran to desist from all of its terrorist actions is going to require showing Iran that there’s a very high price it’s paying for these terrorist actions.”

  Fay pressed harder: “What are we talking about in terms of a multiple there?”

  “Oh, I would think that a multiple of ten is much more likely necessary to deter Iran from carrying out all terrorist actions,” Clawson responded.

  Fay did not ask Clawson for a specific dollar figure; there was no need. The message that Fay delicately guided Clawson to deliver was clear: With Iran, as with so many other nations, money can be an effective way to send a message. But when it comes to terrorism, the size of a penalty matters too.

  Fay announced that he had no further questions.

  At this point in most trials, a defense lawyer would normally step forward to cross-examine Clawson and attempt to undermine or at least weaken the impact of his testimony. With no lawyer for Iran in the courtroom, however, Fay’s acknowledgment that he had no other questions to ask was essentially a signal that Clawson’s testimony was over.

  Before Clawson could leave the witness stand, however, Judge Lamberth interrupted: “If the court were to enter a judgment in the multiples you’re talking about in terms of punitive damages, how do you think that would be viewed by Iran?”

  In some trials, judges send signals on what they are thinking about a case. Certainly, Lamberth was not afraid to interject himself into the trial’s testimony with an occasional question, sometimes to merely clarify a point that a witness had made or perhaps to understand a lawyer’s question more clearly. But Lamberth’s question to Clawson was a clear indication of the critical issue he was weighing: Lamberth had the power to impose a heavy punishment on Iran, but would Iran pay attention and change its ways?

  Clawson seemed ready for the question.

  “I think the Iranians would view any judgment by this Court as being politically motivated,” Clawson said.

  Clawson’s answer was not surprising. The Flatow trial may have been presented by Steve Perles and Tom Fay as the equivalent of an ordinary civil lawsuit involving the negligent death of a young woman who only wanted to take a bus to the beach. But, as Clawson and others noted, the implications of the Flatow case involved a complicated array of political issues, many of them framed by the long-standing mutual distrust between Iran and the United States.

  Clawson was not finished.

  The Iranians, he said, would likely view a ruling by Lamberth and a heavy financial penalty “as another bargaining chip that would be used by the United States in the discussions with the Iranians about the settlement of the mutual disputes between the two parties.” In other words, Alisa Flatow and the lawsuit by her family might be just another political footnote in a more complicated diplomatic arena.

  Clawson said that the Iranians had already filed complaints in the International Court of Justice against what they felt was improper behavior by the United States, including an attack by the US military on an offshore Iranian oil platform after a mine, planted by Iran in Persian Gulf shipping lanes, damaged a US oil tanker. Without addressing their responsibility for planting a mine in a crowded shipping lane, the Iranians nonetheless claimed in their case to the International Court of Justice that the attack on their oil platform violated a treaty signed years earlier.

  Clawson said the Iranians would see any ruling by Lamberth as a shrewd attempt by the US government to create a bargaining chip that could be used by American lawyers to persuade the Iranians to drop their case before the International Court of Justice. Or as Clawson noted, “We’ll drop that if you drop your” International Court of Justice case.

  Clawson’s message was both cautionary and factual. In mentioning the ICJ cases and the array of international legal disputes between the United States and Iran, he was pointing out that the Flatow lawsuit was not so simple. Then again, he said, a clear message in the form of a heavy financial punishment in a ruling from Judge Lamberth would not be ignored by the Iranians either.

  “I think that this sort of punitive damages would cause the Iranian government to think twice about the advisability of targeting American citizens,” Clawson said. Iran would probably not stop all terrorist activities, but it might stop attacks on US citizens. “To the extent that we have the very limited purpose of stopping attacks on American citizens, we might well be able to accomplish that through this kind of an action, without necessarily accomplishing the overall political goal, say, of the United States government deterring Iranian terrorism.”

  Lamberth still was not satisfied.

  “But you think they would not just ignore this as a piece of paper?” The judge asked. Or would Iran take note of “the assumed threat” in any ruling “that there would be further judgments if they continued to kill other Americans?”

  It was a logical and understandable question. Would a ruling by the judge force Iran to change its ways?

  Once again, Clawson offered a nuanced prognosis: “The Iranian leadership is very much, by orientations, sensitive to bargaining techniques and bargaining chips that people can bring to bear.”

  Lamberth listened intently. When Clawson finished, the judge asked, “So if you were sitting here advising the court, do you think it’s something I should do?”

  The question was not inappropriate or flippant. As the Flatow trial progressed, Lamberth wondered whether he was presiding over a case that was more symbol than substance. Yes, judges’ rulings are often interpreted as sending messages to the larger society about the impact of serious crimes. Certainly Lamberth knew that. But like man
y experienced judges, he also knew that his fundamental task was to reach a conclusion that was not empty of meaning or power.

  Clawson shared Lamberth’s concerns. On one hand, a strong decision by Lamberth, accompanied by a substantial penalty, could stop some attacks on US citizens. But it would probably not stop all terrorist attacks by Iran.

  “I think we have to decide very specifically what it is we want to deter and have a clear concept of what it is that this law and that these punitive damages are designed to do,” Clawson said.

  Patrick Clawson’s testimony was strong. But Fay and Perles felt it would be stronger if another expert could corroborate Clawson’s central ­conclusions—that Iran not only contributed large sums of money to terrorist groups but that it was closely involved with Palestinian Islamic Jihad, which was responsible for killing Alisa Flatow. Clawson was knowledgeable but he was an academic and Perles and Fay believed they needed a witness with tangible experience in tracking terrorists. After Clawson left the witness stand, Fay called Harry Brandon, the former chief of counterterrorism and intelligence at the FBI.

  Brandon retired from the FBI in 1993 after a twenty-three-year career. Unlike most FBI agents who spend their careers specializing in some of the bureau’s more conventional crime-solving investigations, such as bank robberies and political corruption, Brandon developed an early expertise in counterterrorism and in particular the gathering of intelligence on foreign groups that might try to attack American targets overseas or inside the United States.

  Within the tradition-bound FBI, where promotions were often awarded to agents who brought major cases to trial, gathering intelligence on potential terrorists was sometimes considered a dead-end career. Information was difficult to collect and was often so murky that it was useless if the government managed to bring a case to trial. But Brandon happened to enter the counterterrorism field just as Islamic terrorism was becoming a major geopolitical force.