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Counterterrorism in American Civil Courts: The Role of Letelier v. Republic of Chile

Published online by Cambridge University Press:  04 November 2020

Alan McPherson
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The very rarity of these situations makes the legislation all the more important.

Samuel Buffone, lawyer for Isabel Letelier

On September 21, 1976, former Chilean Ambassador and Minister Orlando Letelier drove to his job in Washington, DC, in his Chevelle, accompanied by his coworkers, Ronni Moffitt and Michael Moffitt. As the Chevelle veered off Massachusetts Avenue into Sheridan Circle, the bottom of the car exploded upward, blowing off Letelier's legs and killing him within minutes. A short time after that, at George Washington Hospital, Ronni Moffitt died from a severed carotid artery. Michael Moffitt, sitting in the back, survived with minor injuries. Most observers of the brutal dictatorship of Augusto Pinochet, which had overthrown Marxist President Salvador Allende in 1973 and jailed and then exiled Letelier, Allende's defense minister, pinned the crime on the Chilean despot, and the Departments of Justice and State came to the same conclusion within a few years. The assassination remains to this day the only instance of state-sponsored terrorism in Washington. In the 1970s and 1980s, it spawned several criminal lawsuits in the United States and Chile, the most important of which was not settled until 1995, and remnants of which continue to this day. In Chile, the case also inspired a wave of legal activism against impunity for human rights violations.

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Original Article
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Law and History Review , Volume 39 , Issue 1 , February 2021 , pp. 1 - 27
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Copyright © the American Society for Legal History, Inc. 2020

The very rarity of these situations makes the legislation all the more important.

Samuel Buffone, lawyer for Isabel LetelierFootnote 1

On September 21, 1976, former Chilean Ambassador and Minister Orlando Letelier drove to his job in Washington, DC, in his Chevelle, accompanied by his coworkers, Ronni Moffitt and Michael Moffitt. As the Chevelle veered off Massachusetts Avenue into Sheridan Circle, the bottom of the car exploded upward, blowing off Letelier's legs and killing him within minutes. A short time after that, at George Washington Hospital, Ronni Moffitt died from a severed carotid artery. Michael Moffitt, sitting in the back, survived with minor injuries. Most observers of the brutal dictatorship of Augusto Pinochet, which had overthrown Marxist President Salvador Allende in 1973 and jailed and then exiled Letelier, Allende's defense minister, pinned the crime on the Chilean despot, and the Departments of Justice and State came to the same conclusion within a few years. The assassination remains to this day the only instance of state-sponsored terrorism in Washington.Footnote 2 In the 1970s and 1980s, it spawned several criminal lawsuits in the United States and Chile, the most important of which was not settled until 1995, and remnants of which continue to this day. In Chile, the case also inspired a wave of legal activism against impunity for human rights violations.

In 1978, Letelier's widow, Isabel, filed a civil case in the United States District Court for the District of Columbia, the first of two civil suits in the Letelier affair. Letelier v. Republic of Chile Footnote 3 aimed to exploit a loophole in a new law, the Foreign Sovereign Immunities Act (FSIA), that potentially allowed private United States citizens to sue foreign governments for damages resulting from non-commercial torts.Footnote 4 FSIA's larger purpose was to provide guidelines for United States courts to decide when to restrict the immunity of foreign governments in civil cases. Letelier became the first case filed under FSIA that dealt with terrorism, given that the law was otherwise designed and mostly used to help settle commercial disputes, not political ones. As this article will demonstrate, when other litigants used it as a counterterrorist tool, they largely lost their cases or failed to collect judgments. Isabel Letelier and her fellow plaintiffs won a favorable decision in United States civil courts, but when they filed an identically named case to execute the judgment through attachment of Chilean state property, United States courts first allowed but then denied the gambit. Letelier's legal team also failed to prompt legislation from a United States government that feared retaliation, but that legislation eventually passed in another form.

The Letelier–Moffitt double murder provides a window into the halting legal and legislative histories of United States civil recourse against state-supported terrorism. The first case demonstrated the imprecision of the non-commercial tort exception of FSIA, paving the way for its enhanced codification in 1996. The second Letelier case, meanwhile, highlighted the difficulties of FSIA enforcement, namely of attaching property associated with a foreign sovereign, whether through the courts or through legislation. The case fits a pattern common to many international conventions against terrorism from the 1970s, which were equally challenging to enforce. Together, the Letelier suits indirectly led to legislation against state-sponsored terrorism in United States courts while laying bare the continuing challenges of seeking remedy against such terrorism in civil courts, namely the tug of war it created among the three branches of government.

Legal scholars have identified the difficulties in obtaining judgements or settlements against state-sponsored terrorists, but they have underappreciated the impact of the Letelier suits. Scholars of counterterrorism, especially, have largely disregarded the Letelier civil cases because of their apparent failures. Although the very existence of the first case—and its original, favorable verdict—demonstrated an innovative reading of FSIA, its ultimate defeat made demonstrable the deficiencies in FSIA. Perhaps as a result, only Eric Singer focuses primarily on the Letelier case's FSIA contributions to human rights as well as its difficulties with enforcing judgments, but he ends his narrative in the mid-1980s, before the case had the most impact on legislation.Footnote 5 Scholars have also typically made few mentions of Letelier when discussing FSIA, partly because most scholarship on FSIA concerns its commercial implications.Footnote 6 Even a report titled Suits Against Terrorist States by Victims of Terrorism made no mention not only of Letelier but also of Pinochet or Chile.Footnote 7

The scholars who have mentioned Letelier have underestimated its significance.Footnote 8 James Cooper-Hill called it “the first case clearly worthy of the terrorist label” but otherwise “less significant” than other cases, because of its timing. Had it been filed before FSIA was enacted, he asserted, the State Department would have controlled the decision and stripped Chile of its immunity in United States courts. Had it been filed after the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), which amended FSIA to carve out an explicit exception of immunity for acts of terrorism, it also would have won, added Cooper-Hill.Footnote 9 This timing-based dismissal, however, is faulty on two grounds. First, it is highly unlikely that a pre-1976 government such as Richard Nixon's would have stripped Pinochet, a stalwart Cold War ally, of immunity. Second, Letelier is significant precisely for demonstrating the need for AEDPA. Similarly, Curtis Bradley and Jack L. Goldsmith attributed to Letelier only “limited significance” because the case concerned the rare occurrence of an attack on United States soil. They added that the 1989 Amerada Hess decisionFootnote 10 contradicted Letelier by insisting that “the only international law-related exceptions to immunity under FSIA must appear on the face of the statute.”Footnote 11 Yet Bradley and Goldsmith failed to heed the legislative history of FSIA, which, this article will later show, implied a broad application of exceptions to immunity.

Partly, scholars have failed to understand the Letelier case because their sources have been almost exclusively limited to the texts of court decisions. By gathering evidence from the plaintiffs’ archives, newspapers, and United States government bureaucrats and lawmakers, this article can better assess the mixed impact of the Letelier civil case on counterterrorism in the United States. The Letelier court decisions, taken together, point to continuing obstacles in prosecuting state sponsors of terrorism, thus helping to blur the line between pre- and post-9/11 legal histories of United States counterterrorism, whether against states or against private actors.Footnote 12 There is insufficient attention paid to civil liability for international terrorism.Footnote 13 Even scholars of FSIA have paid little to no attention to terrorist events before the explicit terrorism exception of AEDPA in 1996.

The challenges that the Letelier plaintiffs faced all related to the continuing immunity of the nation-state in a supposed age of globalization, thus contributing to a growing debate about the contest between national and international norms and institutions.Footnote 14 No matter what states did abroad, it remained difficult to hold them accountable; difficult, but increasingly possible.

FSIA and its Intents

As the first terrorism-motivated case under FSIA, Letelier made plain that the design of the law disadvantaged it. Congress's primary intent of FSIA was to strip immunity from sovereigns in select commercial matters, not in political ones.

FSIA came about as an effort to minimize United States law's disadvantages under the existing international law of sovereign immunity. Since their rise, nation-states had adopted the theory and practice of “absolute immunity” for foreign sovereigns. Reflecting the maxim “the King can do no wrong,” absolute immunity meant that foreign sovereigns could not be subject to legal prosecution abroad. In the twentieth century, however, Western courts, influenced by “the increasing respect in civilized states for the rule of law” and “the increasingly large involvement of states in commercial and trading activities,” according to Robert von Mehren, progressed toward the “restrictive doctrine.”Footnote 15 Restrictive immunity rejected absolutism and posited that, in some cases, foreign governments could be sued. By the 1970s, most other Western countries had adopted a form of restrictive doctrine in state statutes, and the doctrine had made its way into international conventions.Footnote 16

The United States government was catching up to this trend. From the 1812 decision of Chief Justice John Marshall in The Schooner Exchange v. M'Faddon to 1921, United States courts endorsed absolute immunity, and the Supreme Court even reversed the challenge to it that latter year.Footnote 17 In the 1940s, however, the Supreme Court affirmed that the courts should leave foreign immunity decisions to the State Department. On May 19, 1952, the State Department issued the “Tate letter,” in which it gave itself the power to decline immunity to foreign governments on a case-by-case basis.Footnote 18 This was “qualified sovereign immunity,” as one scholar called it.Footnote 19

The Tate years, however, proved burdensome for the Departments of State and Justice. Since World War II, the United States government had been dragged into foreign courts with increasing frequency. “This litigation has involved such diverse activities as the purchase of goods and services by our embassies, employment of local personnel by our military bases, the construction or lease of buildings for our foreign missions, and traffic accidents involving U.S. Government-owned vehicles,” explained a House report. The United States almost always pled sovereign immunity in these cases, but Western Europe increasingly practiced the restrictive doctrine and so tended to deny United States pleas.Footnote 20

FSIA made the United States the first nation in the world to codify the law of foreign sovereign immunity.Footnote 21 Upon signing on October 22, 1976, President Gerald Ford justified it as a mundane technocratic update, calling it a “small but carefully considered step” toward “an international legal order.”Footnote 22 Yet FSIA would significantly benefit the United States government. “Current US law regarding sovereign immunity is incomplete and our courts have experienced substantial difficulties in cases involving foreign states,” domestic political advisor Jim Cannon explained to Ford.Footnote 23 Foreign states held the initiative to defend their immunity either in the courts or with the State Department. Inevitably, the process involved diplomatic considerations. In some instances, foreign states could “exert diplomatic influences” related to these cases. In others, private litigants’ legitimate grievances could be distorted by “nonlegal considerations,” meaning diplomatic tussles.Footnote 24 The administration wished “to minimize irritation in foreign relations arising out of such litigation.”Footnote 25

FSIA would also help clear up confusion between branches of the United States government. From 1952 to 1976, the State Department's “Tate letter” approach arrogated an enormous responsibility away from Congress and the courts. When a case arose, a foreign sovereign would typically apply for immunity with Foggy Bottom, which would then file a “suggestion of immunity” in the courts, which would in turn stay the proceedings.Footnote 26 The existing method, explained an aide in 1976, “puts the Executive Branch in the difficult position of effectively determining whether the plaintiff will have his day in court. . . . Questions of such moment are appropriate for resolution by the courts, rather than by the Executive Branch. This also is the universal method followed in other legal systems.”Footnote 27 In other words, the State Department put itself “in the awkward position of a political institution trying to apply a legal standard to litigation already before the courts,” explained the House. “Moreover, it does not have the machinery to take evidence, to hear witnesses, or to afford appellate review.”Footnote 28

The primary intent of FSIA, as the foregoing suggested, was to provide relief in commercial cases. One category of conflicts with a foreign government recounted by the House was “when US businessmen sell goods to a foreign state trading company, and disputes may arise concerning the purchase price. Another is when an American property owner agrees to sell land to a real estate investor that turns out to be a foreign government entity and conditions in the contract of sale may become a subject of contention. Still another example occurs when a citizen crossing the street may be struck by an automobile owned by a foreign embassy.”Footnote 29 All these examples were commercial or civil in nature. When passed, FSIA declared foreign sovereigns immune, but with four broad exceptions: (1) if the foreign state waived its immunity, (2) if a commercial activity of that state directly affected the United States, (3) if the foreign state or its officials and employees were accused of non-commercial torts, and (4) if real estate was in dispute. Explicity two and potentially three of these four exceptions were commercial.

The only exception to the commercial application of FSIA was Section 1605(a)(5), which provided the non-commercial tort loophole that Orlando Letelier's widow Isabel Letelier and her lawyers explored: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case. . . in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”Footnote 30

But it, too, was not intended explicitly to address acts of terrorism. The House explained when drafting the law that the non-commercial tort exception “is directed primarily at the problem of traffic accidents.”Footnote 31 An FSIA guide for judges from 2013 instructed the following for 1605(a)(5): “Prototypical cases include injuries resulting from an automobile accident involving an embassy vehicle and a ‘slip and fall’ in a foreign consulate.”Footnote 32 When Ford predicted in his signing statement that the statute would help “resolve ordinary legal disputes,” therefore, he probably did not have a car bombing in mind. The Letelier assassination had occurred just the previous month. If the president or legislators had it on their mind, one of them would likely have mentioned it in congressional speeches or internal corrrespondence.Footnote 33

Further limiting the non-commercial exception's reach was the fact that only United States citizens or naturalized citizens could claim recourse to it. For that reason, since 1976, claims against Cuba and Iran by citizens of those countries residing in the United States have gone nowhere.Footnote 34 Tortious acts or omissions considered under FSIA also needed to have occurred within the United States.

At the time of FSIA's signing, all governmental parties seemed pleased with it. The Departments of State and Justice had worked together for a decade, under three administrations, to draft the legislation. A first proposal in 1973 met with some mild opposition from the maritime bar, but it, too, was on board by 1976, as well as were the American Bar Association, other bar groups, members of the business community, and international legal scholars.Footnote 35 One from this latter group praised the Ford administration for a responsible, constitutional act of foreign relations that “should lead to more predictable and fairer decisions in the area of foreign sovereign immunity.”Footnote 36 Just before it passed it, the House called FSIA “urgently needed legislation.”Footnote 37

Early Victory of Letelier

The Letelier plaintiffs, fueled by a human rights movement in the 1970s that challenged state sovereignty, wished to exploit the FSIA non-commercial tort exception to seek justice against Pinochet's barbarities in any legal way possible. Given the primarily commercial design of FSIA, they scored an improbable victory, although one that would be both soon reversed and, in later decades, limited in its impact against state-supported terrorism.

In August 1978, once the Department of Justice and the Federal Bureau of Investigation (FBI) had identified the co-conspirators of the Sheridan Circle car bombing and indicted them in criminal court, lawyer Michael Tigar filed a civil suit in United States District Court for the District of Columbia on behalf of Isabel Letelier, her four sons (Juan Pablo, José, Cristián, and Francisco), and Michael Moffitt; and against the Chilean government, the head of Pinochet's secret police (Manuel Contreras) and his chief of operations (Pedro Espinoza), a Chilean who had done reconnaissance work in Washington (Armando Fernández), two Cuban-Americans who had helped (Alvin Ross and Guillermo Novo), and an American-Chilean explosions expert named Michael Townley. The suit sought still-unspecified monetary damages for the “wrongful deaths” of Letelier and Moffitt.Footnote 38 “The government of President Augusto Pinochet has taken the people we loved from us and have caused all of us immeasurable personal grief,” said the relatives. “We hold Gen. Pinochet and his government directly responsible. The government of Chile has invaded the streets of Washington to assassinate someone under the protection of the U.S. government and has murdered a U.S. citizen.”Footnote 39

The criminal trial in United States District Court initially resulted in several guilty verdicts against Guillermo Novo and his brother Ignacio Novo, and Alvin Ross. Also indicted were Contreras, Espinoza, and Fernández, but they all remained in Chile and were not tried in the United States. Still, their indictment provided the basis for a United States government request for their extradition. In September 1980, in a stunning reversal, the United States Court of Appeals in the District of Columbia vacated the convictions of the Novo brothers and Ross.Footnote 40

When the initial criminal trial ended in February 1979, “all of a sudden,” recalled Sam Buffone, Tigar's partner, “the civil case became much more important. This was now the vehicle to place responsibility where it belonged, on the highest level of the Chilean government.”Footnote 41 It was the first wrongful death case ever brought in the United States against a foreign nation.Footnote 42 It also went beyond the criminal suit against the individual Cubans, the Chileans, and Townley by also accusing the Pinochet government directly. However, the unprecedented nature of the case also presented its greatest obstacle.

Buffone and Tigar spotted the loophole in FSIA, which had become effective just 3 months after the assassination. It excluded from sovereign immunity “tortious” matters, whether ordinary or extreme. Were not two murders by car bomb in Washington the perfect example of tortious actions? asked the lawyers. The cause of action included that the defendants conspired to deprive Letelier and Moffitt of equal protection under the law; that their use of explosives was negligent and reckless; that they committed intentional, willful, and malicious assault and battery causing death; that they violated the “law of nations” by torturing, unlawfully confining, and assassinating Letelier and others; and that they caused the death of an internationally protected person (Letelier, a former ambassador).Footnote 43

Chile did not respond to the court's correspondence, and none of the other defendants appeared in court. But Santiago did send diplomatic notes to the State Department arguing that sovereign immunity protected it and that, besides, Chile was innocent.Footnote 44 The Chilean strategy of stonewalling failed. On March 11, 1980, United States District Judge Joyce Green let Letelier proceed without the defendants present. She ruled that a foreign government was “not immune from lawsuits that allege responsibility for negligence or for internationally wrongful acts.”Footnote 45 She rejected Chile's argument that Congress, in drafting FSIA, only intended to hold foreign governments accountable for private acts, such as auto accidents, whereas political assassinations were public deeds by a government.Footnote 46 She delved into FSIA's legislative history and cited House and Senate Reports: “Section 1605(a)(5) is directed primarily at the problem of traffic accidents but is cast in general terms as applying to all tort actions for money damages. . . . The purpose of section 1605(a)(5) is to permit the victim of a traffic accident or other noncommercial tort to maintain an action against a foreign state to the extent otherwise provided by law.”Footnote 47

“Nowhere is there an indication that the tortious acts to which the Act makes reference are to only be those formerly classified as ‘private,’” Judge Green deduced.Footnote 48 “The relative frequency of automobile accidents and their potentially grave financial impact may have placed that problem foremost in the minds of Congress,” she added, “but the applicability of the Act was not so limited, for the committees made it quite clear that the Act ‘is cast in general terms as applying to all tort actions for money damages’ so as to provide recompense for ‘the victim of a traffic accident or other noncommercial tort.’”Footnote 49

On June 20, 1980, the trial began. Tigar and Buffone presented hundreds of exhibits and witnesses from the criminal trial. The families calculated what Letelier and Moffitt would have earned over the years, and therefore requested between $900,000 and $1,500,000 for Isabel Letelier and her children, and between $405,000 and $916,000 for Michael Moffitt. To this would be added reparations for suffering and punitive sanctions, despite the FSIA prohibition against punitive awards.Footnote 50 Judge Green pulled out a blackboard and did her own math, and she agreed.Footnote 51 She praised the commitment, compassion, and skill of the Tigar and Buffone team.Footnote 52

On November 4, Judge Green ordered the defendants to pay $4,950,000 in damages to the two families.Footnote 53 To $510,000 in compensatory damages, she added $2,000,000 in punitive damages and more than $2,400,000 in compensation under wrongful-death statutes, in addition to $110,000 for the lawyers (which they donated to the Letelier–Moffitt Memorial Fund for Human Rights).Footnote 54 At a press conference the following day, Tigar explained that $2,950,000 of the judgment involved all the defendants, including the Republic of Chile, and that the rest must be sought from the individuals named in the suit. It was the first time that a United States court had provided a civil remedy to an act of international terrorism.Footnote 55 “Even though nothing can bring them back,” said Moffitt of his wife and former coworker, “it feels good that one can achieve some measure of justice in this case.”Footnote 56 Because Chile owed them millions of dollars, Letelier, her sons, and Moffitt were now officially judgment creditors.

The first Letelier case was also significant in setting a precedent for parsing the discretionary functions of a foreign sovereign. The FSIA non-commercial tort exception itself contained an exception: In cases in which a state was performing (or failing to perform) a discretionary function, it could apparently not be sued. Therefore, courts had to decide which acts were discretionary; judges proved divided over whether illegal acts were.Footnote 57 Judge Green launched the debate in 1980 when she found that the Letelier–Moffitt murder was not immunized as within the discretionary functions of the state. “Whatever policy options may exist for a foreign country,” she wrote, “it has no ‘discretion’ to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”Footnote 58 In 1984's Estate of Domingo v. Republic of Philippines Footnote 59 and in 1989's Liu v. The Republic of China,Footnote 60 involving the murder of journalist Henry Liu in San Francisco, courts again found that United States-based murders tied to agents of foreign governments fell within FSIA's non-commercial tort exception.Footnote 61 However, legal scholar Joseph Dellapenna is correct in assessing that, “for less extreme wrongs, this approach is not likely to succeed.”Footnote 62

Letelier also became part of a larger movement for human rights in the Western world and especially in the United States. Several watersheds in global human rights surrounded the Chile–Letelier story: the Helsinki Accords of 1975, the Soweto riots of 1976, the awarding of the Nobel Peace Prize to Amnesty International in 1977, and the Democracy Wall movement in China in 1978.Footnote 63 In the United States, according to historian Kenneth Cmiel, the years from 1973 to 1978 were “particularly crucial” to contemporary human rights: “As the Vietnam War wound down, human rights emerged as a new way to approach world politics.”Footnote 64 Atrocities at My Lai in Vietnam and in a rising number of autocratic countries such as Brazil, Greece, and the Soviet Union awakened a nation and a Congress eager to, in historian Barbara Keys's phrase, reclaim its virtue.Footnote 65 The Letelier assassination also occurred just over 1 month before Jimmy Carter's election. Carter, who declared at his inauguration that “our commitment to human rights must be absolute,” made human rights a focal point of his administration's foreign policy.Footnote 66 By 1977, according to political scientist Lars Schoultz, human rights became “the largest, most active, and most visible foreign policy lobbying force in Washington.”Footnote 67 Near that time, more than 200 groups worked on human rights in the United States—more than fifty outfits lobbied Congress, and approximately fifteen concentrated on Latin America. Orlando Letelier worked for the Institute for Policy Studies and with several solidarity organizations. When he died, his widow took over some of his work and branched out in other groups, always dedicating most of her work to human rights. Close friends included Senator Edward Kennedy (D-Mass.) and other members of Congress who collaborated with the new groups. Representative Don Fraser (D-Minn.) chaired the first congressional hearings on human rights in 1973.Footnote 68 Fraser, Representative Tom Harkin (D-Iowa), Kennedy and others often faced a reluctant Republican administration but prevailed in a surprising number of their fights. In 1976, for example, Congress required not only that diplomats report back human rights violations but also that those reports be published. Most of the amendments the human rights network passed remain on the books today. Similarly, FSIA and other legislation have motivated the movement for human rights in the United States and abroad.Footnote 69

In terms of counterterrorism, however, Letelier was most influential in allowing United States victims of state-sponsored terrorist attacks to even conceive of resorting to civilian courts. After the car bomb in Sheridan Circle came a rash of terrorist attacks against United States citizens abroad that raised the possibility of civil action. After the 1986 kidnapping of Joseph Cicippio, a United States citizen working at the American University of Beirut, by Hizbollah, a terrorist agent of Iran, Cicippio won a judgment of $30,000,000 against Iran, but could not collect the award.Footnote 70 In the case of Pan Am Flight 103 brought down over Scotland in 1988, the plaintiffs argued that the flight should have been considered United States “territory,” but the court found neither that an aircraft under United States authority was on United States territory, nor, in the legislative history, that there was evidence that Congress had meant for states to waive their immunity “by implication” when they committed violations of jus cogens.Footnote 71 Such cases effectively made foreign states immune from civil liability for injuries caused by their agents’ terrorist actions.Footnote 72 Yet the Letelier case was different in that no one contested that it had occurred on United States territory.

In the 1990s, terrorism reached more Americans in the United States with the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing, producing AEDPA, Letelier’s indirect legal descendant. The Cuban air force's downing of a civilian United States plane over international waters finally compelled President Bill Clinton on April 24, 1996 to sign AEDPA. AEDPA amended FSIA by providing an explicit terrorist exception that stripped immunity from a foreign state when damages were sought against specific terrorist acts, including “extrajudicial killing.”Footnote 73 It widened the scope of FSIA in that acts brought to court could be committed in the defendant state's territory, but it also narrowed it in that the state had to have been designated a state sponsor of terrorism by the State Department. After 1996, several cases against Cuba and Iran were quickly filed, and courts handed down several multi-million-dollar judgments against state supporters of terrorism.Footnote 74 One consequence of AEDPA was to revert immunity decisions back into the hands of the secretary of state, who alone curates the list of state sponsors of terrorism. As part of a rapprochement with Cuba, for example, Secretary John Kerry removed it from the list in 2015, effectively vacating any pending civil cases against it.Footnote 75 In this way, AEDPA went against the intent of FSIA to depoliticize immunity decisions.

Also in the tradition of Letelier, litigants kept finding paths to civil suits. After the attacks of 9/11, families of victims sued Saudi Arabia in United States civil courts, but because the kingdom was not on the State Department's list of terror sponsors, the litigants bypassed the amendments of AEDPA regarding terrorism and instead sued under the original non-commercial tort exception of FSIA, arguing that the Saudi prince and others had funded the terrorist group Al Qaeda through a charity.Footnote 76 However, the District Court for the Southern District of New York barred their claims based on the discretionary function exception to the torts exception of FSIA. Part of the decision's rationale was to respect the separation of powers, which civil suits against state sovereignty had muddled since the nineteenth century. “Congress made a policy decision that the Executive branch, and not the courts, have the authority to label a foreign nation a terrorist,” wrote the court, stemming also from its belief that the intent of FSIA was primarily to limit the non-commercial tort exception to run of the mill negligence. “The Court must be vigilant to exercise discipline and apply the law only as it is written.”Footnote 77 In this case, however, such a reading of FSIA was even narrower than legislators’ intent in 1976 and undercut the original holding of Letelier.

Failure to Execute

Although Letelier achieved a verdict against the Republic of Chile, the plaintiffs were unable to execute on their judgment. After waiting a year while Chile refused to comply with the award, their ultimate failure to serve the judgment would set a precedent that served as a hurdle for later victims of state-sponsored terrorism.Footnote 78 A second round of court decisions eviscerated the remedy, and the legislative history demonstrates even more directly how Letelier helped cause Congress to pass AEDPA. The Letelier case fits well within the pattern, as John Murphy expressed it, of civil plaintiffs encountering “extreme difficulties in collecting on their judgments” against individuals of governments convicted of international terrorist crimes.Footnote 79

Partly, executing verdicts proved difficult because of the design of FSIA. The statute explicitly prevented attachments of state-owned property prior to judgment, so that one could not force a foreign state into court by seizing its property. In addition, Section 1606 of FSIA denied the recovery of punitive damages against a foreign state; it allowed only “actual or compensatory damages.”Footnote 80

“But,” explained a State Department official in 1976, “the bill does provide a method whereby a private litigant can, under court direction and as a last resort, satisfy a final judgment by executing on commercial property owned by a foreign state.”Footnote 81 Section 1609 of FISA provided such execution if the property were somehow related to the case. The question would be how directly related. Again, the intent of the legislation was commercial, in that the State Department foresaw FSIA rewarding plaintiffs for car accidents and expropriations. However, if the Letelier claimants were emboldened to find Chilean state-owned property in the United States and file for its attachment, especially if they could show that such property was used in the commission of the crime against Letelier and Moffitt, they could obtain their award. “We intend to leave the Chileans no place to hide,” said Tigar.Footnote 82

In this strategy, Tigar and Buffone's leverage was LAN-Chile, the Chilean national airline, which managed several flights out of United States airports. When Santiago failed to respond to Judge Green's order to pay the $2,950,000 in compensatory damages, Orlando Letelier's former colleagues predicted, “It will be a long and difficult effort to obtain the assets of the Chilean government.”Footnote 83 Indeed. Tigar filed a second civil lawsuit, this time in the Southern District of New York, to empower United States marshals to seize one Boeing 707 freighter owned by LAN-Chile. The new suit was also called Letelier v. Republic of Chile, but added LAN-Chile as a defendant.Footnote 84

The ability to “attach” LAN-Chile's assets to the civil judgment rested on whether Michael Townley, the bomb maker, had used the airline's craft in the Letelier conspiracy and whether he had done so with the collusion of its employees. In his testimony, Townley had asserted that he carried many packages aboard LAN-Chile planes and that the airline knew about it but did not know that some were explosives. The airline did know he worked for DINA, Chile's secret police.Footnote 85 One journalist accused Townley of traveling in the pilot's cabin and not registering as a passenger.Footnote 86

Investigations by the FBI, the Department of Justice, a grand jury, and the House Government Activities and Transportation Subcommittee confirmed that Townley's testimony was essentially accurate. And they found more. LAN-Chile pilots, approximately 90% of whom knew Townley, abused their informal exemption from strict customs searches. They not only allowed Townley to smuggle small packages but also brought them on board themselves, including the Fanon-Courier paging device that served as a detonator in the Letelier car bomb. LAN-Chile employees also upgraded Townley and co-conspirators to first class for free, allowed Townley to bring on overweight luggage, helped him rent a car, loaned him money for a ticket, and carried explosives and money to the Cubans after the assassination to replenish their supplies. It was even rumored that pilots had handed over the controls of a plane to Townley while over United States airspace. Meetings to plot the murder were allegedly held in the LAN-Chile executive lounge and office at Kennedy Airport. The Chilean secret police, it was revealed, had ordered the pilots to help.Footnote 87

Many of these claims became public in the spring of 1980, as Isabel Letelier and Michael Moffitt's lawyers filed for execution. LAN-Chile denied all wrongdoing.Footnote 88 By May, the United States government banned had LAN-Chile from flying to Los Angeles while the investigation was ongoing.Footnote 89 A Chilean magazine speculated that, if the airline's flights to Miami and New York City—38% of its operations—were also cut off, the loss would be devastating.Footnote 90

In July, the House investigation came to its own conclusions. It found that no evidence contradicted Townley's claim that LAN-Chile staff were unaware that they carried explosives for DINA, Chile's secret police. Nevertheless, “While it may be that LAN Chile employees did not know that they were transporting explosives, it is plain that they did afford special treatment to packages transported for DINA agents, and that this behavior was widespread.” The most dangerous substance carried on LAN-Chile planes, they found, was lead trinitroresorcinate, a highly volatile explosive.Footnote 91

The Federal Aviation Administration (FAA) finally conducted an investigation, writing to the Central Intelligence Agency (CIA) and interviewing LAN-Chile employees. Because Congress was accusing the FAA of negligence, the latter unsurprisingly reported that its investigation “failed to substantiate the allegations.” Because LAN-Chile pilots and staff had not known about explosives on board, and because few of the other allegations could be proven, the FAA found that the Chilean airline had violated no regulations on security or hazardous materials. It is true that LAN-Chile had been too friendly with Townley, letting him into its first class lounge and transporting his private property, but these were “minor violations,” as well as being 5 years old.Footnote 92 The FAA recommended that the case be closed.Footnote 93 The State Department, parroting the FAA's rationale, refused, on the grounds that LAN did not knowingly participate in the assassination, to revoke LAN's permit to fly in the United States.Footnote 94

Facing public opprobrium and legal challenges, LAN's officials grew nervous and began to lease from other airlines aircraft that could not be seized.Footnote 95 On March 18, 1983—the Letelier filing was at that point 3 years old—the actual trial took place, and Judge Charles Brieant ordered the airline's assets frozen and its planes grounded. Buffone and his firm had convinced the judge that LAN-Chile was not only involved in the plot but was also wholly owned and controlled by the Republic of Chile. Michael Moffitt was to be appointed receiver to run LAN's United States operations until the $2,950,000, now augmented by $800,000 in interest, was paid.Footnote 96 In the days that followed, another federal judge, Morris Lasker, found LAN sufficiently connected to the crime and ordered it put into receivership unless the airline posted a bond of up to $4,000,000.Footnote 97 LAN-Chile deposited the bond but also appealed the order.Footnote 98 Its Boeing 707 continued to land at Kennedy Airport.Footnote 99

At this point, the case against LAN had overshadowed the original case against Chile, so Isabel Letelier clarified the issue for the press. “There is only one trial here, not two as some believe,” she said. “Our fight is not with LAN, but against the Republic of Chile, against its present government. It fulfills a promise that we, the families, made to the corpses of our loved ones: that we will not quit until justice is done.”Footnote 100 One of her lawyers added, “The importance of this case goes far beyond the interests of the plaintiffs. It is important for us to pursue this case vigorously to the end because it demonstrates to repressive regimes throughout the world that if refugees are pursued and harmed here, American courts provide a forum in which to prove the harm and force the regime to pay.”Footnote 101 Until November 1984, prospects seemed bright for the judgment creditors. A lawyer from Buffone's office wrote in April that he “expected [to see] the bonding company writing a check to the plaintiffs in the amount of about $5 million in ten to twelve months.”Footnote 102

Then misfortune befell the case. The Second Circuit Court of Appeals reversed the decision of the district court. It interpreted FSIA as intended to compensate for commercial losses, not political assassinations. The court furthermore found that the district court had “improperly ignored defendant LAN's separate juridical status from the Republic of Chile.” Again it came down to legislative intent: “Congress did not provide for execution against a foreign state's property under the circumstances of this case. Congress provided for execution against property used in commercial activity upon which the claim is based. An act of political terrorism is not the kind of commercial activity that Congress contemplated.”Footnote 103 In other words, although the government of Chile owned LAN-Chile, the two should be considered as discrete legal entities. (To this argument, Sam Buffone responded that Chile, unlike the United States, did business abroad through “a series of state-owned shipping, airline, copper and commercial ventures.”)

The implications of the Second Circuit's decision in Letelier were, as scholar Eric Singer described in 1986, “ominous.” Airlines or other foreign-state properties could participate “in a political assassination on United States soil” and “remain insulated from executions.”Footnote 104 Plaintiffs wishing for civil remedies against terrorism would have to demonstrate an improbably close relationship between state-sponsored terrorists and the state property they used in their crimes. Most devastating for counterterrorism efforts, the court explicitly declared that the “purpose” of the state-sponsored terrorism was “irrelevant under the FSIA” because “politically motivated assassinations are not traditionally the function of private individuals. They can scarcely be considered commercial activity.”Footnote 105

Letelier, Moffitt, and their lawyers were crestfallen. FSIA had provided them a “right without a remedy.” The only judicial recourse left to them was the Supreme Court, but in mid-1985, the justices declined to review the case.Footnote 106

Amending FSIA

Concurrently, lawyers initiated a more arduous, indirect, and uncertain legislative solution to the problem of execution: amending FSIA. In August 1984, no doubt prompted by Tigar and Buffone, the American Bar Association approved recommendations for amendments to the act. Its report called the execution of judgments under FSIA “unduly restrictive.”Footnote 107 The Maritime Law Association and the American Arbitration Association agreed. In 1985, the House and Senate introduced bills, but they died in committee.Footnote 108

In 1988, the House Judiciary Committee, dominated by Democrats, unanimously reported out H.R. 3763 to amend FSIA. Sponsored by Howard Berman (D-Calif.), the bill declared that sovereign immunity would no longer be considered grounds for denying the enforcement of a court award, thus allowing recovery by victims of terrorist attacks. It passed the House by voice vote. In the Senate, Edward Kennedy opened the hearing by directly invoking the Letelier–Moffitt court saga. Kennedy lamented “the ludicrous result” that survivors of terrorism could merely “attach the ‘assets’ directly involved in the terrorist act,” and the subsequent protection to “the terrorist government” offered by “the doctrine of sovereign immunity.” For Kennedy, it was not enough that Chile had suffered a blow to its reputation “in the arena of world affairs.” The “existing Sovereign Immunities Act,” he concluded, “should be corrected not only to allow these survivors to proceed against Chile but also to assist the victims of terrorist acts committed by other terrorist governments.”Footnote 109 Kennedy thus made clear the impact of this single assassination on United States legislation in regard to counterterrorism.Footnote 110

The State Department, however, opposed Sections 1 and 3 of the bill because they would result in foreign sovereigns being “treated more harshly than either the U.S. Government or private litigants, including private corporations.” The State Department considered Section 1 to define too loosely a “nexus” between a state and its commercial activities. Legal advisor Elizabeth Verville referred senators to the original intent of FSIA: “To make the foreign sovereign suable by private parties when it enters the marketplace, not when it carries out state action, even wrongful. These kinds of matters were property left to the diplomatic channel.” “Rather than a loophole,” she continued, “we believe it was the deliberate intention of the framers to both limit jurisdiction against foreign government for intentional torts and to have a dichotomy between the cause of the action and the remedies to be afforded.” Furthermore, the United States could expect retaliation throughout the world's courts against United States property. “For example, U.S. property overseas could be executed to enforce a judgment awarding damages for the U.S. bombing of Libya.”Footnote 111

Section 3, meanwhile, allowed plaintiffs to attach the property of an agency or instrumentality of a foreign state, exactly what Isabel Letelier had attempted against LAN-Chile. Verville of the State Department explicitly brought up Letelier's effort to seize planes and agreed with the Second Circuit Court's denial. Again, her concern was with potential retaliation: “If a judgment against Chile can be executed against its airline on the facts as the court determined them in that case, why couldn't a judgment against the U.S. be executed against a U.S. airline abroad?” Other departments concurred: the Department of Defense was concerned for its “vast property holdings overseas,” while the Department of the Treasury thought foreigners would now fear “holding funds in the United States.” Stuart Schiffer from the Department of Justice informed the senators that the United States government at the time had “approximately a thousand suits pending against us in foreign countries.”Footnote 112

Faced with such opposition, Kennedy seemed to throw up his hands. “Well, the difficulty I have is that current law makes terrorism looks like its [sic] just another commercial transaction,” he said. “We are talking about those instances of state-sponsored terrorist activity. They didn't exist in the U.S. that I know in 1976, when the Foreign Sovereign Immunities Act was enacted. It does exist today.” Senator Patrick Leahy (D-VT) was equally exasperated: “Why not say to people who are victims of this kind of terrorism, if you can get some of their assets in our jurisdiction, grab them? Otherwise aren't we saying to them, we may be the most powerful nation on earth but any country of any size can thumb its nose at us?” He also pointed to the seeming absurdity that, “if it is a negligent tort [such as a car accident] we should be able to act, but if it is an intentional tort [such as the Letelier murder] we shouldn't?”Footnote 113

Lawyer Sam Buffone, accompanied by Michael Moffitt, also testified. To the argument about retaliation, he countered that friendly countries would not seize on a minor amendment to begin a slew of proceedings against the United States, and that unfriendly ones such as Libya and Iran would not need it as an excuse. And to the officials’ argument that H.R. 3673 was unnecessary because Letelier stood virtually alone as a civil case against state terrorism, he retorted that “the reason is that no one other private attorney, no other private plaintiff is going to come into the court system and put in the time and resources that we did when they know they can't execute on their judgment.”Footnote 114 In other words, the catch-22 of the Letelier cases was that victims of terrorism would not dare go to court precisely because they could not expect justice from the courts.

Unfortunately for the Letelier and Moffitt families, H.R. 3763 died in the Senate.Footnote 115 Five Democrats had sponsored the bill. Most likely, President Reagan's State Department prevailed on enough Republican and Democratic senators that the Democratic-controlled chamber tabled the bill. Where liberal Democrats had prioritized using United States power to obtain justice and fairness, the executive departments and Republicans primarily sought to preserve United States property around the world, and the latter argument won the day.Footnote 116

The 1990s finally saw legislative changes related to execution, albeit not without equal resistance from the United States executive. The 1996 AEDPA, as explained, explicitly waived immunity for foreign sovereigns for terrorist acts, and it was Representative Berman who, demonstrating the impact of the Letelier cases, once again introduced that language into the bill as he had done in the 1980s. Echoing their own concerns from the 1980s, both the State and Justice Departments opposed the legislation, which the deputy attorney general explained in 1995: “Waivers dangerously invite reciprocal treatment for the United States overseas, thus exposing the United States to lawsuits in unfriendly foreign courts based on actions of the U.S. government.” Plaintiffs might also target Israel and Saudi Arabia in United States courts, “thereby complicating our foreign relations with such countries.”Footnote 117 For similar reasons, the Departments of State and Justice opposed not only AEDPA but also the passage of the Torture Victims’ Protection Act.Footnote 118

Unlike H.R. 3763, however, AEDPA passed, fueled by a fear of more dramatic homeland terrorism than in the 1970s or 1980s. Still, as Jennifer Elsea reported, “successive Administrations [since 1996] have intervened to block the judicial attachment of frozen assets to satisfy judgments.” At times, susceptible property proved difficult to find. At other times, the United States government refused to attach any property tied to embassies, such as rents.Footnote 119 When President Bill Clinton reluctantly signed a 1998 amendment to FSIA allowing the attachment of frozen embassy property, in the name of national security he immediately waived its requirements. He argued that the law would not only contradict United States treaty obligations but also prevent him from receiving ambassadors and ministers, settling claims, and using such assets as leverage against terrorist states. The clash between the victims’ right to indemnity versus the government's protection of its interests abroad continued in the George W. Bush and Barack Obama administrations.Footnote 120

Issues of execution by attachment of property such as that encountered by the LAN-Chile case also continued to trouble courts. One was, as David Epstein and Charles Baldwin wrote, “the question of whether a foreign government-owned business entity qualifies as an agency or instrumentality for purpose of application to the FSIA.” In 2003's Dole Food v. Patrickson, the Supreme Court held that a foreign sovereign must directly own the majority of shares in the entity for that entity to qualify as an instrument of the state. Alternatively, such a business can be ruled an “organ” of the state, but the term has not been defined well. In U.S.X. Corp. v. Adriatic Ins. Co., also 2003, the Third Circuit ruled that an organ must “engage in a public activity on behalf of foreign [sic] government.”Footnote 121 By 2008, one scholar tallied, punitive damages allowed under the terrorism exception of FSIA amounted to almost $7.3 billion while compensatory damages ran up to approximately $6.6 billion. The enforceability of that fortune remained “the most salient and perhaps coincidentally ignored issue.”Footnote 122 As recently as the 2018 Supreme Court ruling in Rubin v. Islamic Republic of Iran, the justices unanimously found that plaintiffs could not attach antiquities owned by Iran that were in the possession of the University of Chicago.Footnote 123

Epilogue and Conclusion

For the Letelier and Moffitt families, reparations eventually materialized. In April 1988, using a rare legal procedure called “espousal,” the Reagan administration sent a diplomatic note for the first time requesting Letelier–Moffitt compensation in the name of the United States government. After the Senate hearings on H.R. 3763, which coincided with a Chilean plebiscite that denied another mandate to Pinochet, State Department lawyer Abe Sofaer called Buffone and “offered a truce”: If the families and their allies in Congress would drop the amendment, Washington would publicly take on the Chilean government.Footnote 124 One week after the plebiscite, Washington put a number on its request: $12,000,000. The sum included the costs incurred by the United States government in investigating the killings to the $5,000,000 legal judgment rendered in 1980 in the Federal District Court.Footnote 125 Not surprisingly, the lame-duck Pinochet government rejected the request, saying that it “had no role in the crimes that resulted in the deaths of Mr. Letelier and Mrs. Moffitt.”Footnote 126

In 1990, the new, civilian government led by President Patricio Aylwin showed its openness to compensating the families. In January, Isabel Letelier and Michael Moffitt told Senator Kennedy's staff that they “would be happy with $3 million,” but State held out for a higher figure.Footnote 127 In May, the Aylwin government agreed to compensation in principle, and, as a quid pro quo, the State Department promised tariff preferences and aid programs to Chile.Footnote 128 Throughout 1991, the Chilean Congress dawdled on the compensation issue, afraid that the Leteliers and Moffitts would come back for more or that others would piggyback onto the case. Finally, in January 1992, a bilateral commission ordered Chile to pay $2,611,892, just short of the $2,900,000 that the families had requested.Footnote 129 “A shining victory for the rule of law,” Senator Kennedy called the award. “Never again can a dictator expect to commit international acts of terror with impunity.”Footnote 130 In May, Chile accepted the ruling.

The Letelier and Moffitt families obtained some financial satisfaction, but through the executive branch and not under FSIA. FSIA remained, as two scholars noted in 2013, “the sole basis for obtaining jurisdiction over a foreign state in U.S. courts.”Footnote 131 If anything, the Letelier cases pointed out the shortcomings in the law and foreshadowed the amendments that would eventually give it more teeth. Still, because of Letelier, victims of terrorism were further inspired to use civil courts, technocrats and legislators wrestled with the original intent of the law, and Congress continued to expand the rights of victims as the executive continued to balance them with its foreign policy prerogatives. Scholars have continued to call for the expansion of FSIA, for example in the wake of North Korea's attacks on Sony Pictures Entertainment in 2014, to include a new exception for cyberattacks sponsored by a government against commercial activity in the United States.Footnote 132

In a broader sense, the story of Letelier and FSIA points to an overarching issue in the prosecution of counterterrorism brought about by the United States separation of powers. FSIA itself was born of a desire by the executive to delegate to the judiciary the burden of micromanaging claims against foreign states. Yet that devolution proved unsatisfying to the executive when cases and proposed amendments seemingly countered the national interests as defined by the executive. The tug of war between the executive and judiciary, with the legislature often in the middle, has hovered over this issue since the 1970s. With the ever-increasing pace of terrorist incidents involving the United States, we should not be surprised to see trends triggered by the assassination of Orlando Letelier continue to bedevil the United States government.

Footnotes

He is the author, most recently, of Ghosts of Sheridan Circle: How a Washington Assassination Brought Pinochet's Terror State to Justice. He thanks Silke Zoller for reading a draft of this article.

References

1. U.S. Senate, Foreign Sovereign Immunity Act Amendments, 100th Cong., October 5, 1988 (Washington, DC: Government Publishing Office, 1989), 73.

2. For more details, see Dinges, John and Landau, Saul, Assassination on Embassy Row (New York: Pantheon Books, 1980)Google Scholar, and McPherson, Alan, Ghosts of Sheridan Circle: How a Washington Assassasination Brought Pinochet's Terror State to Justice (Chapel Hill: University of North Carolina Press, 2019)CrossRefGoogle Scholar.

3. De Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), judgment entered, 502 F. Supp. 259 (D. D.C. 1980), execution ordered, 567 F. Supp. 1490, 575 F. Supp. 1217 (S.D.N.Y. 1983), rev'd, 748 F.2d 790 (2d Cir. 1984).

4. Foreign Sovereign Immunities Act, Pub.L. 94–583, 90 Stat. 2891, October 21, 1976.

5. Singer, Eric, “Terrorism, Extradition, and FSIA Relief: The Letelier Case,” Vanderbilt Journal of Transnational Law 19 (1986): 57–82Google Scholar. Singer's article is also largely about extradition and not FSIA. See also Bello, Judith Hippler and Barcroft, Peter A., “Chile—Criminal Jurisdiction—Prosecution of Officials of Secret Service for Assassination of Former Ambassador to the United States,” American Journal of International Law 90 (1996): 290–96Google Scholar, which covers the United States-based Letelier decisions but in the context of Chilean court decisions on the case, not of counterterrorism.

6. Examples of scholarship on commercial FSIA topics include Donahue, Timothy E., “Wanted: A Practical Application of the Foreign Sovereign Immunities Act to Foreign Reward Offers,” Boston College International & Comparative Law Review 35 (2012): 223–52Google Scholar; Tuninetti, Amanda, “Limiting the Scope of the Foreign Sovereign Immunities Act after Zivotofsky II,” Harvard International Law Journal 57 (2016): 215–51Google Scholar; and Myers, Jason E., “Preserving International Comity: The Foreign Sovereign Immunities Act of 1976 and OBB Personenverkehr AG v. Sachs,” Southern California Law Review 90 (2017): 913–44Google Scholar.

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30. 28 U.S.C.A. § 1605 (West).

31. H.R. Rep. 94-1487, at 20 (1976).

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37. H.R. Rep. 94-1487, at 7 (1976).

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39. Cited in Jeremiah O'Leary, “2 Families Sue Chile for Damages in Letelier Case,” Washington Star, August 8, 1978.

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41. Cited in Symmes, “The Man.”

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44. Cited in Symmes, “The Man.”

45. Cited in Isabel Letelier, letter to Lottie Wexler, June 9, 1980, folder 21, box 45, Institute for Policy Studies (hereafter IPS) Collection, Wisconsin Historical Society, Madison (hereafter WHS).

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51. Interview with Isabel Letelier, Santiago, July 19, 2017.

52. L/M Fund, memorandum to Key Contacts, Washington, November 5, 1980, folder 4, box 53, IPS Collection, WHS.

53. Letelier v. Republic of Chile, 502 F. Supp. 259 (D.D.C. 1980).

54. “Survivors in Letelier Case are Awarded $5 Million,” New York Times, November 5, 1980, A14.

55. L/M Fund, memo to Key Contacts, Washington, November 5, 1980, folder 4, box 53, IPS Collection, WHS.

56. Cited in Laura A. Kiernan, “Bomb Blast Victim's Kin Awarded $4 Million,” Washington Post, November 6, 1980, A4

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58. 488 F. Supp. 665, 673 (D.D.C. 1980).

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78. Singer, “Terrorism,” 70.

79. Murphy, “Civil Liability,” 28.

80. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, https://www.gpo.gov/fdsys/pkg/STATUTE-90/pdf/STATUTE-90-Pg2891.pdf (September 9, 2019); and Stewart, The Foreign Sovereign Immunities Act, 60.

81. Jenkins, memorandum.

82. Kiernan, “Bomb Blast,” A4.

83. L/M Fund, memorandum to Key Contacts, Washington, DC, November 5, 1980, folder 4, box 53, IPS Records, WHS.

84. Letelier v. Republic of Chile, 567 F. Supp. 1490 (S.D.N.Y. 1983).

85. Townley testimony, c. April 25, 1978, Digital National Security Archive (hereafter DNSA) collection Chile and the United States: U.S. policy toward democracy, dictatorship, and human rights, 1970–1990.

86. George Landau, memorandum to Secretary of State, Santiago, July 27, 1978, DNSA.

87. 96 Cong. Rec. 96-1157 (1980); Jack Anderson, “Chilean Airline Tied to Smuggling,” Washington Post, September 27, 1979; John L. Burton, letter to D. F. Pearce, Washington, DC, November 30, 1979, DNSA; Carl S. Rauh and Lawrence Barcella, letter to James R. Robinson, Washington, DC, November 30, 1979, DNSA; FBI report, “Lineas Aereas Nacional Chilena,” January 25, 1980, DNSA; and Richard Lally, letter to Benjamin Achenbach, May 30, 1980, DNSA.

88. “LAN desmiente,” Ultimas Noticias, June 20, 1980, 16; and “LAN no ha transportado materiales explosivos,” El Mercurio, June 20, 1980.

89. “¿Nuevas represalias?” Hoy, May 28–June 3, 1980, 9–12.

90. Patricia Verdugo, “En pistas chilenas,” Hoy, May 28 –June 3, 1980, 12–13.

91. 96 Cong. Rec. 96-1157 (1980); see also H.R. Rep. No. 720, (1980).

92. Richard Lally, Director of Civil Aviation Security, FAA, letter to John Burton, Chairman, Subcommittee on Government Activities and Transportation, Washington, DC, c. March 10, 1981, in 96 Cong. Rec. 96-1157 (May 9, 1980); and Wallig and Brinley Williams, Civil Aeronautics Board, to Director, Bureau of Compliance and Consumer Protection, May 21, 1981, DNSA.

93. Joseph Blank, Office of Civil Aviation Security, FAA, March 20, 1981, DNSA.

94. J. Brian Atwood, Assistant Secretary for Congressional Relations, letter to John Burton, c. January 21, 1981, DNSA.

95. Martin Walker, “The Fight for Bread and Roses,” The Guardian, March 3, 1981, box 251, records of the Transnational Institute, International Institute of Social History, Amsterdam, Netherlands.

96. Scott Armstrong, “Chilean Plane Leaves, Defying Letelier Judgment,” Washington Post, March 19, 1983, A1.

97. Tamar Lewin, “U.S. Judge Threatens Chilean Airline,” New York Times, December 20, 1983.

98. “Chile Airline Compliance Set,” New York Times, December 24, 1983, A40.

99. Cecilia Domeyko, “Buscando en LAN,” Hoy, January 17, 1984, n.p.

100. My translation. Cited in Domeyko, “Buscando.”

101. John J. Privitera, letter to Robert Borosage, April 10, 1984, Washington, DC, folder 10, box 24, IPS Collection, WHS.

102. Privitera to Borosage.

103. De Letelier v. Republic of Chile, 748 F.2d 790, 799 (2d Cir. 1984).

104. Singer, Terrorism, 73.

105. Cited in Senate, Foreign Sovereign, 74, 70.

106. John J. Privitera, memorandum, Washington, DC, June 20, 1985, folder 10, box 24, IPS Collection, WHS.

107. Cited in Senate, Foreign Sovereign, 71.

108. The bills were S. 1071 and H.R. 3137.

109. Senate, Foreign Sovereign, 3–4.

110. H.R. 3763 also enjoyed the support of the American Bar Association and of the National Association of Manufacturers (NAM). NAM wrote on behalf of its 13,500 member companies that the amendment would strengthen their case against “foreign entities [that] continue to use loopholes in the law as bases for refusing to accept their legal responsibilities.” See, Senate, Foreign Sovereign, 111.

111. Senate, Foreign Sovereign, 16, 17.

112. Ibid., 17, 19, 39.

113. Ibid., 51, 55.

114. Ibid., 62.

115. Samuel Buffone and John J. Privitera, “Chronology of Events: Letelier-Moffitt Assassination, 1976-August 1990,” August 1990, DNSA.

116. Phillip Trimble has found that United States “courts follow political branch direction in the creation and application of the body of [customary] law, in “A Revisionist View of Customary Law,” UCLA Law Review 33 (1986): 665, 696.

117. Jamie Gorelick, memorandum for the assistant to the president for National Security Affairs, Washington, DC, September 5, 1955, Domestic Policy Council and Jose Cerda, “Terrorism II [1],” Clinton Digital Library, https://clinton.presidentiallibraries.us/items/show/53606 (September 9, 2019).

118. Murphy, “Civil Liability,” 35–38.

119. Elsea, Suits, quotation on 1, 6–8.

120. Ibid., 9–11.

121. Epstein and Baldwin, International Litigation, 202.

122. Rocklage, Andrew, “Neglected Consequences of the Terrorism Exception to the Foreign Sovereign Immunities Act,” International Law 36 (2013): 483Google Scholar.

123. 138 S.Ct. 816 (2018).

124. Symmes, “The Man”; and Robert Pear, “U.S. Bills Chile in Killing of Letelier,” New York Times, October 13, 1988, A3.

125. David Colson, memorandum to Judge Sofaer, Washington, DC, May 16, 1988, Additional Release: Chile Declassification Project, 2015.

126. Cited in Kornbluh, Peter, The Pinochet File: A Declassified Dossier on Atrocity and Accountability (New York: The New Press, 2003), 465Google Scholar.

127. Nancy Soderbeg, memorandum to Edward Kennedy, January 31, 1990, DNSA.

128. Mónica González, “EE.UU. insiste en indemnización para familias de las víctimas,” La Nación (Santiago), April 20, 1990, 6; and Robert Pear, “Chile Agrees to Pay Reparations to U.S. in Slaying of Envoy,” New York Times, May 13, 1990, A1.

129. Claudia Riquelme, “Un millón 600 mil dólares para Isabel Morel e hijos,” La Tercera (Santiago), January 13, 1992, 7.

130. Barbara Crossette, “$2.6 Million Awarded Families in Letelier Case,” New York Times, January 13, 1992, A11.

131. Buergenthal, Thomas and Murphy, Sean, Public International Law in a Nutshell, 2nd ed. (St. Paul, MN: Thomson/West, 2013), 291Google Scholar.

132. Anderson, Paige C., “Cyber Attack Exception to the Foreign Sovereign Immunities Act,” Cornell Law Review 102 (2017): 1087–114Google Scholar.