State sponsors of terrorism are entitled to due process too: The amended foreign sovereign immunities act is unconstitutional
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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In 1996, Congress, as part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the list of noncommercial tort exceptions to sovereign immunity in the Foreign Sovereign Immunities Act ("FSIA") in response to a federal court's determination that it lacked subject matter jurisdiction over Libya and alleged Libyan terrorists in Smith v. Socialist People's Libyan Arab Jamahiriya, one of many cases resulting from the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. The ambiguously worded amendment appears to give federal courts both subject matter jurisdiction, which Congress clearly intended, and personal jurisdiction over the seven nations currently listed by the Executive Branch as "state sponsors of terrorism." The United States District Court for the Southern District of New York, the only court to address the amended FSIA, unconstitutionally interpreted it as according the court personal jurisdiction over Libya in the re-filed suit by the survivors, executors, administrators, and personal representatives of those killed over Lockerbie. This Article demonstrates that giving the court personal jurisdiction over a foreign sovereign simply because the Executive Branch has concluded that it is a "state sponsor of terrorism" or because an offshore terrorist act had some "effect" in the United States would violate the Due Process Clause of the Fifth Amendment absent the performance of traditional "minimum contacts" analysis under both the specific and general personal jurisdiction tests.
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