Foreign Sovereign Immunity

• Author: International Law Group
• Pages: 75-77

Page 75

In July 2004, the United States filed an indictment, charging the "Holy Land Foundation For Relief and Development" (HLF), inter alia, with materially supporting a terrorist organization. Some have described the HLF as the American fundraising arm of Hamas. A Texas district court issued an ex parte restraining order, indefinitely freezing HLF's assets looking toward their forfeiture.

David Strachman (plaintiff) is administering the estate of two terrorism victims, Yaron and Efrat Ungar. The Ungars were U.S. citizens who died in a Hamas terrorist attack in 1996. Plaintiff filed an unsuccessful challenge to the district court's restraining order. In February 2004, Strachman and other plaintiffs had obtainedPage 76 a default judgment for more than $116 million against Hamas in Rhode Island. The assets have allegedly been levied upon based on writs of execution issued by other district courts to satisfy a $116 million judgment against HLF.

Plaintiff claimed that ß 201(a) of TRIA permits attachments and executions "notwithstanding any other provisions of law," and that the legislative purpose of TRIA should trump any forfeiture provisions. This subsection of TRIA provides: "Notwithstanding any other provision of law, . . . any property with respect to which financial transactions are prohibited or regulated pursuant to section 5(b) of the Trading with the Enemy Act, section 620(a) of the Foreign Assistance Act of 1961, sections 202 and 203 of the International Emergency Economic Powers Act, or any other proclamation, order, regulation, or license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (including any agency or instrumentality of such state) claiming such property is not immune under section 1605(a)(7)[FSIA]."

Plaintiff appealed the restraining order against HLF, arguing that the Texas district court lacked jurisdiction to issue the order. In particular, plaintiff maintained that Section 201(a) - the attachment provision of the Terrorism Risk Insurance Act of 2002 (TRIA) - overrides criminal forfeiture provisions. The Fifth Circuit disagrees but vacates, and remands to the district court for lack of compliance with the notice requirement of Fed.R.Civ.Proc. 65(a)(1).

"The purpose of the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. ßß 1330, 1602-11, is to set forth principles by which a federal court decides a...