The Inadequate Reach of Aiding and Abetting Liability under the Antiterrorism Act

Abstract

For U.S. nationals injured or killed in a terrorist attack, the civil remedies provision of the Antiterrorism Act (ATA), 18 U.S.C. § 2333, provides victims with a means of holding the perpetrators accountable in federal court. Two recent amendments to the ATA allow secondary liability claims against defendants who aid and abet acts of international terrorism. As a result, ATA claims have increasingly targeted a new class of defendants—deep-pocketed, multinational corporations—by alleging that they are indirectly liable because they provided substantial assistance to the attacks by doing business with terrorists. However, the current ATA regime limits secondary liability claims to only those acts perpetrated by a U.S. government-designated foreign terrorist organization (FTO). Thus, defendants who knowingly provided substantial assistance to the terrorist attacks of non-designated perpetrators may escape civil liability. Using an FTO designation as the touchstone of secondary liability has devastating consequences for plaintiffs who have otherwise put forward plausible and well-pleaded claims. It also fails to adequately account for the consequences of modern non-international armed conflict. This Note addresses the consequences of this statutory gap. It also examines another statutory constraint—the “act of war” exception—and the function it plays in defining the contours of ATA liability. Ultimately, this Note proposes that Congress remove the requirement for an FTO designation in the secondary liability provision, 18 U.S.C. § 2333(d). Doing so would better conform the secondary liability provision to the tort objectives underlying the ATA’s legislative purpose, while maintaining sufficient judicial controls on the scope of ATA liability, including the act of war exception.