Bus on Jaffa Road

by Mike Kelly

  Before he left the FBI in 1993 to form his own private security consulting firm, Brandon led the FBI’s counterterrorism division for two years and was a key player in the bureau’s investigation of the 1993 attack on the World Trade Center in New York City by Islamic militants who had worshipped at a mosque in Jersey City, New Jersey.

  Stephen Flatow knew the mosque well. It was located only a few blocks from his Jersey City title search firm. And, the mere proximity of a mosque where jihadist theology had been openly discussed was deeply unsettling to Flatow and a reminder of how vulnerable he had come to feel.

  Fay wasted little time addressing a critical element of Brandon’s expertise. “Are you able to give us an estimate, within a reasonable degree of certainty, as to the amount spent upon terrorism by the government of Iran?” Fay asked.

  “Specifics are difficult,” Brandon cautioned before offering a figure that was remarkably similar to that given by Patrick Clawson.

  “My estimate would be in the neighborhood of $100 million per year, supporting various terrorist movements,” Brandon said.

  Fay wanted Brandon to be more definitive. He asked about Palestinian Islamic Jihad—notably the so-called “Shaqaqi Faction” that had claimed responsibility for the bombing that killed Alisa Flatow.

  “The leaders of the Shaqaqi faction were philosophically aligned with the politics of Iran. That was what I would characterize as a ‘take no prisoners approach,’ direct, open use of terrorism as state policy and the Shaqaqi faction was an arm of that,” Brandon said. “The government of Iran supported them directly, as they did others, including Hezbollah, their nearby neighbors, supported them in terms of training, supported them in terms of equipment and certainly in terms of money.”

  Fay moved to another issue he had already explored with Clawson. Would a heavy financial penalty deter Iran from supporting terrorists such as the Shaqaqi faction?

  “Yes, I think so,” Brandon said. “When you take away resources, something has to give.”

  Fay had one more topic to examine, one that he had not raised with Patrick Clawson. The Flatow lawsuit not only targeted the Islamic Republic of Iran, but three of its most prominent leaders, in particular Iran’s supreme leader, Ayatollah Ali Hosseini Khamenei.

  “In a decision of this magnitude,” Fay said, describing the Iranian support for terrorism against Israel that resulted in the death of Alisa Flatow, “would this, of necessity, have to be cleared by Mr. Khamenei?”

  Harry Brandon did not offer a nuanced answer—or even one filled with complicated facts.

  “Yes,” he said. “Absolutely, without question. He approved this.”

  Eight days later, the Flatow family returned to Judge Lamberth’s courtroom with their lawyers. Perles and Fay felt confident that Lamberth would rule in their favor. Their main concern was the size of the penalty against Iran. As he sat down, Perles whispered to Tom Fay: “I hope we get at least a million.”

  Judge Lamberth had prepared a sixty-page memorandum. But he reduced his ruling to only six pages. He needed only eight minutes to read it.

  Lamberth summarized the case. He ruled that law which allowed Flatow to file his wrongful death lawsuit against Iran was constitutional. Then, he got to the crux—assigning responsibility for the death of Alisa Flatow.

  “The death of the decedent was caused by the actions of the Islamic Republic of Iran,” the judge said.

  Next, Lamberth addressed an equally consequential question: How to punish Iran?

  Lamberth began with the basic issues of any wrongful death case. He established that the “economic loss” resulting from Alisa Flatow’s early death amounted to slightly more than $1.5 million. He also ordered Iran to pay another $1 million for the suffering and pain Alisa experienced before she died.

  Lamberth then turned to Alisa’s parents, her three sisters, and her brother. “The amount of pain and suffering of the decedent’s parents and siblings is difficult to value,” he conceded. Nonetheless, Lamberth found a case in Texas that set a benchmark of $5 million. So he ordered Iran to pay $5 million to Stephen Flatow and another $5 million to his wife, Rosalyn, along with $2.5 million to each of Alisa’s three sisters and her brother.

  While the damage amounted to more than $22 million so far, Lamberth was not through.

  “The court also has determined that an award of punitive damages is appropriate,” Lamberth said, noting his belief that a “monetary sanction against Iran will have some impact on their continuing to sponsor terrorist acts.”

  Without pausing, as perhaps an actor in a play or movie might do to allow the weight of his next statement to sink in, he continued matter of factly. “The court is determined to award $225,000,000 in punitive damages against the Islamic Republic of Iran.”

  Coupled with the $20 million in compensatory damages, the total was nearly a quarter of a billion dollars.

  Lamberth complimented Perles and Fay for their presentation. Then he looked at Stephen Flatow.

  “This is a tragic case,” Lamberth began. “But you have made something of it. You’ve tried to do something. . . . The Court has been quite impressed with what you have been able to accomplish here.”

  Next, Lamberth turned to the absent party—Iran.

  “At some point, maybe Iran will come forward and we will have Iran here in the courtroom and we can deal with any legal arguments they want to make,” Lamberth said. “I certainly will listen.”

  Lamberth again praised Flatow for doing “exactly what Congress has empowered him to do.”

  Lamberth noted that “this court has followed its duty” but he finished with a final thought about the unpredictable and violent world he had found himself and his courtroom suddenly drawn into.

  “I hope that the rule of law can contribute ultimately to the solution of the problems presented in this case, where an innocent girl was needlessly killed, for no reason, in a way that doesn’t support anything,” Lamberth said. “It doesn’t contribute to the Mideast peace process to kill an innocent girl like this and the court can not be stronger in condemning this kind of action. It has no place in a civilized society.”

  Steven Flatow listened quietly. He had taken a seat with Perles and Fay at the attorneys’ table in front of Judge Lamberth. As the judge finished reading his ruling, Flatow clenched his fists and gently tapped the table. Then he looked heavenward.

  He could feel Alisa’s presence in the room. He smiled and whispered:

  “Yes, Alisa.”

  Chapter 11

  The news of Stephen Flatow’s legal victory—in particular, the penalty of nearly a quarter-billion dollars imposed by Judge Royce Lamberth against the Islamic Republic of Iran—galvanized Washington’s legal community, especially the city’s small cadre of attorneys who represented victims of terrorism. Suddenly, here was a potential gold mine for civil litigators. Or so it seemed.

  If Flatow could successfully sue Iran for playing a role in the death of his daughter and win such a large judgment, who knew what might be possible? Of course, it still remained to be seen whether Flatow and his lawyers could actually collect money from Iran, either by submitting a direct claim to the Iranian government or gaining control of Iranian properties and financial assets within the United States.

  For now, those details hardly seemed to matter. Dozens of US citizens who had been victimized by terrorism in various corners of the world suddenly felt empowered by what Flatow accomplished with Perles and Fay. Several Americans who had been taken hostage in Lebanon during the 1980s were planning imminent lawsuits, along with the families of other US citizens who had been killed in Israel, the West Bank, or the Gaza Strip in Palestinian attacks, including Arline Duker and Vicki and Len Eisenfeld.

  Arline, Vicki, and Len had not only come to admire Flatow but saw him as just the sort of emotional and legal trailblazer they needed to propel them to seek justice i
n the deaths of their children. After Sara and Matthew were killed, the prospect of pushing ahead with a lawsuit—with all the unknown expenses—seemed overwhelming to Arline, Vicki, and Len, especially as they were coping with their own grief and anger. They devoted much of the previous two years to collecting research on Iran’s connection to Palestinian terrorism. They also interviewed a variety of lawyers. But after watching Flatow’s seemingly tireless crusade, they decided it was time to go to court, too. Two months after Judge Lamberth’s ruling, Arline, Vicki, and Len hired Flatow’s lawyers.

  Another notable Washington lawyer, however, was not so impressed with the Flatow case or the impact it might have on other potential lawsuits, including one by Arline, Vicki, and Len. From his office at the US State Department, just over a mile from Judge Lamberth’s courtroom, Stuart Eizenstat saw trouble in the Flatow decision—trouble for the White House, for his own State Department and its diplomats, for America’s courts, even for the Flatow family and for others such as Arline Duker and Len and Vicki Eisenfeld who were considering similar lawsuits.

  To Eizenstat, any attempt by Flatow and his lawyers—or even by Arline, Vicki, and Len—to take money from Iran could imperil US diplomacy overseas that extended far beyond Iran. If Flatow’s lawyers managed to seize Iranian property within the United States, Eizenstat believed that would set off a chain reaction across the world, with all manner of nations, who had been suspected of supporting terrorism, grabbing control of American properties and essentially holding them as financial hostages in case US courts imposed heavy financial penalties on them.

  On a personal level, Eizenstat felt torn. He knew that Iran and the United States had already agreed to work together with an international court to settle various claims that each nation had filed against the other. Yet Eizenstat, who was Jewish, sympathized greatly with Flatow and even admired his dogged efforts to hold Iran accountable for the death of Alisa.

  To many Jews, the bus bombings that killed Alisa, Matthew, and Sara were nothing less than horrific acts of anti-Semitism. Eizenstat fully understood the legal and emotional arguments that Flatow’s attorneys put forth. But as a lawyer and a State Department official, Eizenstat felt larger issues were at stake for the United States. He came to view the Flatow case and others as the equivalent of legal end-runs that could ultimately disrupt future negotiations between Iran and the United States and possibly with other nations. Instead of US diplomats using various financial claims against Iran as potential bargaining chips in negotiations on a variety of issues, from trade to Iran’s support for international terrorism, American citizens like Stephen Flatow now entered into the already complicated situation. To Eizenstat, this was not good.

  Oddly enough, Eizenstat’s concerns mirrored to some degree those of Judge Royce Lamberth. Even though he had delivered a precedent-setting ruling in the Flatow case, Lamberth made no secret that he still worried that the law he applied had drawn America’s federal courts into the arena of foreign policy in ways that could erode the constitutional power of the president.

  Eizenstat felt he needed to stop Flatow and his lawyers before they went too far and before other lawyers followed with other cases on behalf of other victims such as Sara Duker and Matthew Eisenfeld.

  But how?

  Stephen Flatow’s lawyers were not wasting time. Days after Judge Lamberth’s ruling, Steve Perles and Tom Fay went back to court to begin the next step in their lawsuit—to collect the financial penalties or “damages” that had been imposed on the Islamic Republic of Iran.

  On any day in the hundreds of federal, state, and municipal courthouses across America, lawyers on the winning side of lawsuits simply send a letter to the losers asking them to pay up. In this case, Perles and Fay faced an unusual opponent. They knew they could not simply send a bill of nearly $250 million to the Iranian government and expect to get a check in the mail. Iran had never responded to any aspect of the lawsuit. Certainly, Perles and Fay did not expect Iran to respond now. They concluded that their only option was to file a claim against Iran’s financial and real estate holdings in the United States. Most of those assets had been seized, or “frozen,” by the US government just after the 1979 Iranian revolution. To collect the damages that Judge Lamberth had ordered Iran to pay, Perles and Fay figured they would start with those frozen bank accounts and pieces of property, which included Iran’s former embassy and other diplomatic buildings in Washington.

  Looking for political leverage, they turned first to Senator Frank Lautenberg, the New Jersey democrat who had championed the legislation that allowed Flatow to file his lawsuit. Five weeks after Lambert’s ruling, Lautenberg wrote to President Clinton, Secretary of State Madeleine Albright, and to Treasury Secretary Robert Rubin, asking for help in tracking down Iran’s assets in the United States. Meanwhile, when Perles and Fay contacted the US Treasury Department on their own, and requested a list of Iranian holdings, Treasury officials told Perles and Fay that compiling such a list was too burdensome.

  Lautenberg waited more than a month to hear from Clinton, Albright, and Rubin. When he did not get an answer, Lautenberg asked to talk with Vice President Al Gore. On June 10, as Lautenberg prepared to meet with Gore, a letter written by a mid-level official at the State Department arrived at Lautenberg’s Washington office. The letter was respectful, but amid its bureaucratically polite and imprecise phrasing it foreshadowed the rhetorical battles that Flatow and others, including Arline Duker and Len and Vicki Eisenfeld, would encounter. While the letter was not written by Stuart Eizenstat, it reflected his concerns that the claim on Iranian assets that Flatow wanted to impose would circumvent a process before an international tribunal in which the United States and Iran were negotiating a large number of other claims dating back decades.

  The letter noted that most Iranian bank assets and properties in America that had been frozen by the US government were already under litigation by other US citizens or businesses that had filed claims long before Flatow’s. But, confusing the issue even more, the letter added that the government has “consistently advised that there are currently no Iranian assets held by or under the control of the United States government which could be used to pay claims against Iran.”

  After studying the letter, Lautenberg’s staff drafted a two-page memo that included “talking points” for him to use in his discussion with Gore. The memo pointed out that President Clinton had the authority to personally intervene in Flatow’s efforts to claim Iranian assets and noted that, in particular, Clinton had already said that frozen Cuban assets could be used to compensate the families of the Brothers to the Rescue pilots.

  “They also won a court judgment under the antiterrorism statute,” the memo said of the pilots who had been killed the day before Sara and Matt died in Jerusalem. “President Clinton should do the same for the Flatow family.”

  Lautenberg’s memo next raised an issue that had nothing to do with terrorism but everything to do with the political wars between the Clinton White House and Republicans in Congress. “This issue is going to become a hot political potato and the Republicans will soon be very critical of the administration,” the memo said.

  Lautenberg was in a political and personal bind. As a Democrat, he wanted to support Clinton as much as possible. But he also felt passionately that Flatow deserved to be compensated for the murder of his daughter. The senator understood the arguments on both sides of the issue, in particular the view by some officials in the White House and the State Department who believed that the frozen Iranian assets could be used as leverage in the ongoing, yet quiet, efforts to improve diplomatic relations between the US and Iran. But he was perplexed by the White House and wondered exactly what Clinton meant by his earlier promise to help American families pursue justice against terrorists. Was Clinton serious about his promise? If so, why was his administration pushing back so hard against Flatow?

  Lautenberg’s staff was aware of the potential polit
ical problems that could arise from the administration’s reaction to Flatow’s lawsuit. Already some Republicans were saying that the White House was flip-flopping, first supporting the lawsuits and now blocking efforts to collect damages In its internal memo, Lautenberg’s staff pointed out that “the press is beginning to question whether the Administration is more interested in pursuing a dialogue with the Iranians than compensating victims of Iranian terrorism.”

  Lautenberg told Gore that he wanted to work with the president to find a solution to the Flatow lawsuit and avoid a confrontation with Republicans. But Lautenberg made it clear that if the White House would not cooperate with him and Flatow that he would not hold back his criticism of the president.

  Perles and Fay, meanwhile, pursued a separate strategy. A month after Lautenberg met with Gore, they returned to Judge Lamberth’s courtroom to formally ask for an order to enforce the ruling so they could file claims against Iran’s financial and real estate holdings in the United States. It was July 7, 1998. Judge Lamberth signed the order. Two days later, a battery of US government attorneys walked into Lamberth’s courtroom with a request for the judge to postpone his order. The government lawyers argued that seizing Iran’s embassy would violate diplomatic protocols and wanted time to present their case.

  Lamberth agreed to temporarily delay his order until the government’s attorneys could formulate legal arguments to back up their side of the case. Iran’s attorneys had still not come to Lamberth’s courtroom. But lawyers working for the US government had achieved, perhaps inadvertently, what Iran wanted. For now, Flatow’s mission to hold Iran accountable for Alisa’s death had been shelved.