Updated 4:35 p.m.
Five of Iran's former diplomatic properties in Washington cannot be used to satisfy a $12 million civil judgment owed to the family of a woman killed in Israel in a terrorist attack, a federal appeals court said today.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today said the United States has a treaty obligation to “respect and protect” the properties, which include Iran’s former embassy and ambassador’s residence.
The Terrorism Risk Insurance Act (TRIA) allows plaintiffs to pursue blocked assets belonging to state sponsors of terrorism to satisfy a judgment for compensatory damages. But the law says that property “being used exclusively for diplomatic or consular purposes” is immune from the enforcement of a civil judgment.
The United States has rented Iran’s properties to foreign missions and private parties, using the money for maintenance and repair.
“Because there is no question that the sole purpose for which the United States rented the properties was to facilitate compliance with its treaty obligations under the Vienna Convention, the properties are not subject to attachment under TRIA,” the appellate court said in a ruling written by Judge Thomas Griffith. Judge Merrick Garland, who wrote separately but agreed with the judgment, joined the opinion with Judge Judith Rogers. The court's opinion is here.
Marla Ann Bennett was a student at Hebrew University in Jerusalem when she was killed in a bombing. Hamas, which receives support from the Iranian government, took credit for the attack. In the U.S. District Court for the District of Columbia, Bennett’s parents sued Hamas and won a default judgment. Click here and here for earlier coverage of the suit.
The Bennetts obtained writs of attachment against Iran’s former embassy on Massachusetts Avenue, the ambassador’s residence and other property. The federal government has controlled the properties since 1980, ever since the Iran and the United States severed diplomatic ties. The government intervened in the Bennett family's suit after the default judgment to block the seizure of the Iranian property on the ground that such a move would interfere with international relations.
The question before the D.C. Circuit was whether the properties “are being used exclusively for diplomatic or consular purposes.” The government occasionally has rented the properties. Griffith and Rogers said only the purpose of the government—not the use by the private tenant—is relevant in resolving the question.
Garland agreed with the judgment of the court because, at the time the writs of attachment were issued, the properties were vacant.
“I agree with my colleagues that property the State Department leases to another foreign mission is immune from attachment because it is property that is being used exclusively for diplomatic purposes,” Garland wrote. “But I cannot agree that property the Department leases to a private party—which that party then uses for its own private purposes—is property that is being used exclusively for diplomatic purposes.”
Garland said that “no one would say that property a tenant uses as a gin joint is being used exclusively for educational purposes, even if the landlord uses the rent to send his children to college.”
Former diplomatic property that a tenant is not using for diplomatic purposes can be used to satisfy a judgment, Garland said. If the United States again rents the properties to private tenants who use them for nondiplomatic purposes, Garland said, the Bennetts “should be free to attach them to satisfy their judgments.”
John Vail of the Center for Constitutional Litigation, who argued for the Bennett family, said in an interview: "It's a sad thing for victims of terrorism to receive this opinion on the eve of Sept. 11. It leaves a victim of terrorism without a remedy."
Samantha Chaifetz of the Justice Department’s civil division argued for the government. Chaifetz also was not immediately available for comment.
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