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America At War:
The Price of Terror
With Allan Gerson
Author, "The Price of Terror"
Monday, Nov. 12, 2001; 11 a.m. EST
Until Sept. 11, the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland was the deadlies terrorist attack against American civilians in history. For the families of those who died in the attack, the struggle for justice in the face of terrorism took many forms. One of them was a lawsuit.
Lawyer Allan Gerson brought the first suit against Libya on behalf of the Lockerbie victims -- and helped write and pass the law that makes it possible for ordinary citizens to hold foreign governments responsible for acts of terrorism.
In his new book, "The Price of Terror: One Bomb. One Plane. 270 Lives," Gerson and co-author Jerry Adler, detail the victims' decade-long fight for justice.
Adler was online Monday, Nov. 12 at 11 a.m. EST, to discuss his book and the Lockerbie victims' case. He'll also talk about what lessons learned from the case could apply to the Sept. 11 terrorist bombings in the United States.
A transcript follows.
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Boston, Mass.:
Mr. Gerson,
What is the specific law you helped pass and what effect do you believe the rise of terrorism will have on America's decision to (or not to) ratify the International Criminal Court Treaty?
Allan Gerson: The specific law that we helped pass was the 1996 Anti-terrorism and Effective Death Penalty act. That law symbolized the fusion between two different interests. The first was the interest of the Pan Am 103 families who above all wanted to hold the perpetrators of the bombing accountable. The only way they could accomplish that was through a change in the law to permit foreign governments accused of terrorism to be subjected top the jurisdiction of the US courts. The second aspect of the '96 bill referred to the desires of the families of the Oklahoma bombing to ensure that people like Timothy McVeigh, who was accused of the bombing in 1995, would not be allowed to have endless appeals, and the union of the interests of the Pan Am 103 families and the Oklahoma families resulted in the 1996 bill.
It is unclear that there will be any direct link all we can say is that there has been a progressive trend in international law that recognizes the rights of individuals. The '96 law recognizes such a claim. One should recall that the international criminal court does not empower individuals, just a wider scope for state action against international criminal activity.
Providence, R.I.:
Did any of the victim's families ever recieve any compensation from the Libya as a result of the lawsuit? In short, did it work?
Allan Gerson: The answer is no. They have not yet received money because there has not yet been a judgement in the civil case. There has been a criminal trial in the Netherlands whish was concluded this year under the auspices of Scottish judges. That resulted in a finding of guilt with regards to one of the two
Libyan agents accused of having planted the bomb, and an acquittal for the other. The criminal conviction is now on appeal and Professor Alan Dershowitz of Harvard Law School has joined the Libyan defense team. The civil action is in pre-trial discovery and we anticipate that we will go to trial early next year.
Jerusalem, Israel:
To what extent do you expect to be able to use the evidence produced in the criminal proceedings in the Netherlands in your action?
Allan Gerson: In the book The Price of Terror which I co-authored with Jerry Adler of Newsweek we detail the long and extensive efforts of the attorneys representing the Pan Am 103 families to obtain the cooperation of the Department of Justice and the presentation of the evidence in our civil suit. We anticipate that with the criminal trial's completion we will be able to rely on much of the evidence that was introduced at that trial as well as additional sharing of evidence. Keep in mind that the standard of proof in a criminal case is beyond a reasonable doubt or roughly 95 percent certainly, where as the standard of proof in a civil action drops down to "more likely than not" which is roughly about 51 percent certainty. Also, in our civil suit, we are proceeding directly against the government of Libya rather than mid level operatives and we are seeking compensatory and punitive damages for the families of the victims - something which a criminal conviction on its own does not provide.
Houston, Tex.:
Two questions:
First, before the AEDPA (which you mention above) was passed, did families of terror victims have any recourse -- legal or other -- against governments that sponsored terrorist acts?
Second, how would you envision the Sep. 11 victims' relatives' trying to seek recourse under the AEDPA? Is that even a possibility, or are there any practical obstacles (for example, (1) difficulties with proving that a government that sponsored bin Laden was aware of his plans for the Sep. 11 attacks; (2) difficulties with enforcing a court judgment against any such government) that would make it impossible?
Allan Gerson: Let me try to be specific so we can draw from the lessons of the Pan Am 103 families as discussed in The Price of Terror. Before passage of the '96 Anti-terrorism Act, a foreign government accused of having deliberately set out to murder American civilians could nevertheless claim immunity from the jurisdiction of the U.S. courts. The '96 act stripped governments that sponsored terrorists, as determined by the U.S. Department of State, of any right to immunity. Keep in mind that the 1988 bombing of Pan Am 103 occurred abroad - at least technically, as far as the courts were concerned. If the act occurs within the territory of the United States then even under pre-96 law one could argue that the foreign government sponsoring that act subjected itself to the jurisdiction of the US courts. In terms of what this means for the Sept. 11 families, my first advice to them would be to do nothing for the next six months in terms of binding themselves to any form of legal action or attorneys. They should get the relevant information, they should understand that the law in this regard may be in a state of flux and they should not waive any rights without very careful consideration of the options. The main thing that I would tell them is to keep in mind that their is no stigma to suing and that an important part of their recovery process for them in obtaining closure will involve reaching a point where they feel that the truth has fully been revealed as to who was responsible, either primarily or in a secondary capacity. They will want to go from there to seeking accountability.
Macomb, Ill.:
So what do you think we can do to help our current situation? I don't see a lot of options here.
Allan Gerson: Please keep in mind that The Price of Terror was written before the awful events of 9-11. It was written in many respects both as a warning of what may befall us if we do not take appropriate actions and also as a means of enabling others to draw strength and courage from the example of the Pam Am 103 families who were able to transform their grief into a lasting legacy.
The first thing we can do is to not throw up our hands and say that there is nothing we can do as individuals, but rather to realize that as individuals we have the power if we have the will. To put the matter in larger perspective, President Bush said on Nov. 8 in Atlanta that "we refuse to be in a state of denial." The question that some family members have raised is whether that really means that we refuse to REMAIN in a state of denial, because from the beginning as we document in The Price of Terror, family members screamed to the heavens or to anyone who would listen that what happened to them was not unique and that if Pan Am 103 truly represented a "attack on America," as President Bush and Clinton called it, then surely it was only the first wave of an attack. But despite the clear warnings in 1990 of the President's Commission on Aviation Security and Terrorism - a commission that was established only because of the strong urgings of the Pan Am 103 families -- that immediate aviation securities be taken It took over ten years to take those recommends actions seriously. Similarly the commissions recommendations about the need for "national will and moral courage" to go after terrorists and the nations that harbor them through vigorous military policies was also never taken seriously. Nevertheless individuals played an enormous role in focusing our nation's attention on what needs to be done. Even if it has taken us over ten years to become really serious about taking the necessary steps.
Allan Gerson: President Bush has said that we refused to be in a state of denial. We need to keep in mind that the antithesis if denial is responsibility and that responsibility is wide enough to encompass governmental as well as individual action. The first step in moving from denial to responsibility is to acknowledge the truth. A person who downs six drinks a day and thinks that he is not an alcoholic must be confronted with the fact that he is an alcoholic and, at the very least, must not be allowed to drive so that he does no harm to others as well as to himself. The second step is accountability. Civil actions for damages provide accountability for governments in situations where military action or criminal law measures may for a variety of reasons prove insufficient. Finally we need as the President's commission warned in 1990 national will to win the war and pay the price in terms of individual and national sacrifice and risk. The families who are the heroes in The Price of Terror showed moral courage and we hope -- and I and my co-author hope - that they will also serve as an inspiration for to families seeking to cope with our present tragedies.
washingtonpost.com:
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