State Sponsors of Terror
A Cautionary Tale: What Iran and Cuba Can Teach Us About Designating Russia a State Sponsor of Terrorism
On Nov. 23, 2022, the European Parliament voted in favor of a resolution designating Russia as a state sponsor of terrorism (SST). The move was largely symbolic given that the European Union does not have a legal framework to designate countries as SSTs, so the move doesn’t carry any real consequence. Nevertheless, President Voldomyr Zelenskyy of Ukraine welcomed the Parliament’s efforts to further isolate Russia and its president, Vladimir Putin.
Lurking behind the news clips announcing the Parliament’s resolution, however, was a rehashing of President Biden’s decision not to designate Russia an SST.
The debate over a possible SST designation in the United States, where it does have legal significance, is, at this point, fairly well understood. Opponents have cited against designation on grounds that the “added value” of an SST designation is limited when weighed against the robust sets of sanctions already leveled against Russia by the U.S. and its allies. The risk of Russian escalation and a deterioration in U.S.-Russia relations are additional factors that swing the pendulum against an SST designation. Proponents, for their part, have urged that a designation would carry symbolic value and underscore U.S. support for Ukraine, augment the United States’s power to secondarily sanction actors that continue doing business with Russia, and limit dual-use export items, to name just a few arguments. One thing both sides seem to agree on, however, is that a designation would abrogate Russia’s sovereign immunity in civil suits arising out of terrorist acts it conducts or that take place at the hands of the groups it sponsors. A designation would allow U.S. citizens to sue the Russian state for terrorism in U.S. federal courts.
On this point, there’s an instructive and sobering history. Two episodes, in particular, highlight the unintended consequences of SST designations: the cases of Alisa Flatow and her family’s suit against the Islamic Republic of Iran and the case of the Brothers to the Rescue and their families’ suit against Cuba.
In both of these cases, in which Iran and Cuba had no intention of compensating victims of state or state-sponsored violence, the U.S. government ended up on the hook to find a way to make successful litigants whole. In both cases, the government turned to the stockpile of the defendant countries’ frozen assets.
An SST designation, as these stories suggest, would likely lead to the same outcome in Russia’s case—a doling out of Russia’s frozen assets to U.S. litigants in a fashion that would undercut Biden’s negotiating leverage with Putin, not to mention any efforts to use these assets for Ukraine’s postwar reconstruction. Such a compensation system would satisfy select judgments involving U.S. litigants at the expense of the Ukrainian people.
On the morning of April 9, 1995, 21-year-old Alisa Flatow boarded a bus traveling from Ashkelon, Israel, to a settlement in the then-occupied Gaza Strip. Among the 60 Israeli soldiers and some 40 civilian passengers on board, Flatow was an American citizen and a student at Brandeis University studying abroad in Israel. Her final destination was the Mediterranean resort in the Gush Katif community. She never made it. A suicide bomber from the Shaqaqi faction of the Palestine Islamic Jihad—which was backed by Iran—drove a vehicle packed with explosives into Flatow’s bus. She did not survive.
Halfway across the globe, on Feb. 24, 1996, Carlos Costa and Mario De la Peña, two Americans of Cuban descent, and Armando Alejandre, a naturalized American citizen born in Cuba, piloted two unarmed civilian aircrafts. The men belonged to the humanitarian group Brothers to the Rescue and frequently flew over international waters in search of rafters carrying Cuban refugees floating between Cuba and the Florida Keys. They would locate these rafters and notify the U.S. Coast Guard of their location to help the refugees reach safety. On that February day, the Brothers to the Rescue followed protocol and notified Miami and Havana air traffic controllers of their flight plans. But before the pilots reached their designated area, the Cuban Air Force shot down the Brothers to the Rescue planes without warning. Costa, De la Peña, and Alejandre were killed.
In the immediate aftermath of these murders, the Flatow, Costa, De la Peña, and Alejandre families wanted redress, some means of seeking damages for their loved ones’ wrongful deaths. Under the governing statute, the Foreign Sovereign Immunities Act (FSIA), the U.S. district court had original jurisdiction “against a foreign state … not entitled to immunity.”
At the time, exceptions to foreign state sovereign immunity were limited mostly to states that had waived their immunity—which neither Iran nor Cuba did—or against foreign states that engaged in “commercially related activities” like operating a state-run airline or other business. Moreover, for a “personal injury or death” claim to be viable, the foreign state’s tortious acts or omissions had to occur in the United States. The families, therefore, were blocked from suing Iran and Cuba under any kind of terrorism theory.
Nevertheless, President Clinton attempted to make the families at least partially whole. In the case of the Brothers to the Rescue families, Clinton provided $300,000 as a one-time ex gratia payment to the victims’ families, paid out of Cuban assets frozen in the United States. He also asked Congress to “pass legislation that would provide immediate compensation to the families, something to which they are entitled under international law, out of Cuba’s blocked assets … in the United States.”
Congress acquiesced, and by the end of 1996, it had passed two consequential amendments to the FSIA: Section 221 of the Antiterrorism and Effective Death Penalty Act (AEDPA) (codified at 28 U.S.C. § 1605A) and the so-called “Flatow Amendment” to the Omnibus Consolidated Appropriations Act for 1997. Section 221 of AEDPA waived the foreign sovereign immunity of foreign states that were designated as state sponsors of terrorism by the State Department and had “caused personal injury or death” of U.S. nationals through some “act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources.” The “Flatow Amendment '' established a cause of action against the agencies and instrumentalities of states whose sovereign immunity had been abrogated under AEDPA. Taken together, the amendments waived the foreign sovereign immunity of foreign states that had been designated as SSTs by the State Department—a designation that had previously been included in a number of statutes that limited designated states’ access to various forms of U.S. foreign assistance. This gave plaintiffs injured or killed by terrorist acts a cause of action for suits against “an official, employee, or agent of a foreign state designated as a state sponsor of terrorism” who committed the terrorist acts “while acting within the scope of his or her office, employment, or agency” if a U.S. government official would be liable for such actions. More importantly, the legislation also made terrorist states and their agencies and instrumentalities liable for compensatory damages, and the agencies and instrumentalities liable for punitive damages, if the foreign state’s sovereign immunity had been abrogated.
As Cuba and Iran had been designated as SSTs back in the 1980s, this cleared the way for the Brothers to the Rescue and Flatow families to recover damages for the wrongful deaths of their children. In both cases, U.S. district courts entered default judgments against Cuba and Iran—which claimed that the United States’s actions violated their sovereign immunity under international law and did not show up to defend themselves—under the tort theory of respondeat superior, finding that the Cuban Air Force and the Palestine Islamic Jihad were agents of the states of Cuba and Iran, respectively. In the Brothers to the Rescue case, known as Alejandre v. Republic of Cuba, the court awarded $50 million in compensatory damages and $137.7 million in punitive damages to the families. And in the Flatow case, known as Flatow v. Islamic Republic of Iran, the court entered a default judgment in the amount of $27 million in compensatory damages and $225 million in punitive damages.
Unsurprisingly, neither Cuba nor Iran intended to pay these damages. And here’s where things got really sticky.
To satisfy the judgment, the Flatows sought to attach the Iranian Embassy and diplomatic properties, proceeds from the rental of those diplomatic properties, and the award amount that had been rendered by the Iran-U.S. Claims Tribunal in favor of Iran that the U.S. government had yet to pay. Moreover, both the Flatows and the families of the Brothers to the Rescue sought to attach assets of Iran and Cuba that had been frozen in the United States.
President Clinton opposed these efforts, but Congress—lobbied heavily by lawyers for the families—intervened again. And a standoff of sorts ensued. Congress passed Section 117 of the Treasury and General Government Appropriations Act for Fiscal Year 1999, which amended the FSIA (codified at 28 U.S.C. § 1610(f)(1)(A)) and provided that any property (including diplomatic property and frozen assets) of a terrorist state frozen under the Trading with the Enemy Act or the International Emergency Economic Powers Act (IEEPA) could be “subject to execution or attachment in aid of execution of any judgment relating to a claim … where damages are sought against the state” for acts of terrorism outlined in the FSIA. And to mollify the Clinton administration, which had dug its heels in the sand about attaching frozen assets to claimants’ judgments, Congress also vested the president with the authority to waive this section’s requirements “in the interest of national security.” Clinton signed the amendment into law but immediately executed his waiver authority. Although Clinton had initially asked Congress to pass the original amendment in 1996, his change of heart stemmed from several concerns his administration laid out to Congress and explained in now-unclassified government documents and memos written to the president.
First, blocking foreign states’ assets in the U.S. was “one of the primary tools available to the United States to deter aggression and discourage or end hostile actions against U.S. citizens abroad. … [P]ermitting the attachment of blocked property [would] depriv[e] the United States of a critical source of leverage.” Indeed, in the case of Dames & Moore v. Regan, the Supreme Court held that the president’s ability to “maintain … foreign assets at his disposal” was critical in the president’s ability to “negotiat[e] the resolution of a declared national emergency. The frozen assets serve as a ‘bargaining chip’ to be used by the President when dealing with a hostile country.”
Perhaps the starkest example of the United States flexing its leverage was during the Iran hostage crisis. Iran’s principal condition for the release of American hostages was the return of its blocked assets. Had those assets not been available, the United States may not have been able to secure the safe release of the hostages and later settle thousands of claims brought against Iran by U.S. nationals.
More to this point, blocked assets have historically strengthened the United States’s hand in normalizing relations with foreign states. For example, past blocking programs helped the U.S. secure equitable claims of U.S. nationals against countries such as Yugoslavia, Bulgaria, Hungary, Romania, and Czechoslovakia. And according to then-Deputy Treasury Secretary Stuart Eizenstat’s testimony to the Senate Committee on the Judiciary, $350 million worth of Vietnam’s frozen assets “played an important role in persuading Vietnam’s leadership to address important U.S. concerns in the normalization process,” including “full accounting of POWs and MIAs from the Vietnam War, accepting responsibility for over $200 million in U.S. claims which had been adjudicated by the Foreign Claims Settlement Commission, and moderating Vietnamese actions in Cambodia.”
Doling out blocked assets to private creditors would “literally eliminate blocking as a foreign policy tool,” concluded one memorandum addressed to President Clinton by his national security team.
Second, opening U.S. federal courts to the Flatow and Brothers to the Rescue families would result in a “winner-take-all race to the courthouse.” Such a race would arbitrarily permit recovery for the first few claimants for a limited number of assets at the expense of similarly situated claimants who would be left with nothing—or very little—to recover.
In the case of Cuba, the U.S. Foreign Claims Settlement Commission had certified nearly six thousand claims of U.S. nationals, totaling approximately $6 billion (including interest), against Cuba since the 1960s. These claims included wrongful death claims against the Castro regime, as well as claims against illegal seizures of homes and businesses from U.S. nationals from the time of the Cuban revolution. Claimants had waited nearly 35 years for compensation and had yet to receive anything.
In the case of Iran, several plaintiffs in the Beirut hostage crisis filed suit against Iran to recover damages for their captivity following the Flatow case. In addition to the Flatow judgment, these cases rendered judgments against Iran totaling $65 million. Many similar cases remained pending against Iran in U.S. federal court at the time.
To unfreeze Cuban and Iranian assets and attach them to the Brothers to the Rescue and Flatow judgments would be unfair, the government argued. The Brothers to the Rescue and Flatow families would effectively cut the proverbial line and call first dibs over Cuban and Iranian assets, leaving a depleted stockpile for the claimants who had filed their cases decades earlier against Cuba and potentially leaving nothing for similarly situated claimants seeking damages against Iran and Cuba in the future.
Third, insofar as the Flatow family sought to attach Iran’s diplomatic property located in the U.S. to its judgment, the Clinton administration had a different concern: The United States had international legal obligations under the Vienna Conventions on Diplomatic and Consular Relations to protect diplomatic properties on U.S. soil. Under Article 45 of the Vienna Convention on Diplomatic Relations, the U.S. is obligated to protect the premises of diplomatic missions and their real and personal property and archives even when diplomatic relations are severed between the two states. Under Article 27 of the Vienna Convention on Consular Relations, the same protection is required for consular premises, property, and archives. These obligations are reciprocal. If the U.S. were to flout these obligations, foreign states would feel emboldened to do the same if their relations with the U.S. were to fray. As the U.S. had more diplomatic properties—approximately 3,000 buildings valued at $12-15 billion—and personnel abroad than any other country, the U.S. would be at greater risk if protections for diplomatic and consular properties were eroded.
Moreover, specific to Iran, its diplomatic and consular properties were also the subject of a claim brought by Iran against the United States before the Iran-U.S. Claims Tribunal. The Iran-U.S. Claims Tribunal was set up under the Algiers Accords in 1981, which ended the 1979 Iran hostage crisis and authorized the Iran-U.S. Claims Tribunal to settle any outstanding claims between the two countries. The awards of the Iran-U.S. Claims Tribunal were final and enforceable in the courts of any country. Therefore, if the tribunal found for Iran, the United States would have to forfeit the diplomatic and consular properties back to the Iranian government. If, however, the properties were liquidated to satisfy the Flatow judgments, U.S. taxpayers would have to bear the cost of compensating Iran for the value of the diplomatic and consular properties.
Fourth, and relatedly, allowing private litigants to liquidate Iranian assets in the U.S. would prevent the U.S. from meeting its payment obligations to Iran in satisfaction for the awards rendered by the Iran-U.S. Claims Tribunal. But that would not absolve the U.S. of its obligations to pay. Instead, because the awards of the Iran-U.S. Claims Tribunal are enforceable in the courts of any country, Iran could enforce the award against nonimmune U.S. property in other countries, thereby breaching the long-established principle that the U.S. has sovereign immunity from garnishment actions.
Finally, attaching the states’ frozen assets to litigants’ final judgments would force federal courts to “ignore the separate legal status of states and their agencies and instrumentalities.” Indeed, corporations majority-owned or controlled by the terrorist state would be liable to make these litigants whole on behalf of the government. Such treatment of foreign corporations could lead to retaliation against U.S. investors overseas.
These arguments, no matter how meritorious some of them may have been, didn’t stand a chance against a Congress that had already picked a side. Senator Connie Mack’s (R-Fla.) remarks during Deputy Secretary Eizenstat’s testimony typified congressional sentiment at the time:
Let me suggest two images to keep in mind as you listen to the testimony today. First, the President in his own words and by signing the laws passed by Congress encouraged the families to take the terrorists to court. Second, picture a black stretch limousine pulling up in the front of the Federal courthouse, a gaggle of Justice Department attorneys rolling out and entering the court, not to take sides with the families, but with Castro’s agents. I cannot imagine a greater hypocrisy.
With overwhelming public and congressional support on the side of the Flatows and Brothers to the Rescue, Congress got to work to override the president’s waiver and authorize the attachment of frozen Iranian and Cuban assets to the judgment holders. Congress, led by Senators Frank Lautenberg (D-N.J.) and Mack, negotiated with the Clinton administration and created an alternative compensation regime.
Codified as Section 2002 of the Victims of Trafficking and Violence Against Women Act of 2000, the law lifted the ban on the attachment of frozen assets to claimants’ judgments and authorized the Treasury Department to satisfy a portion of the damages awarded in the Alejandre judgment out of Cuba’s frozen assets. Iran, for its part, had most of its frozen assets returned to it under the Algiers Accords or placed in an escrow account in England awaiting final judgments by the Iran-U.S. Claims Tribunal. Thus, to satisfy the claimants’ judgments, § 2002 mandated Treasury to use the proceeds accrued from the rental of Iran’s diplomatic and consular properties in the U.S., as well as funds “not otherwise made available” up to the amount contained in Iran’s Foreign Military Sales account in the U.S. (approximately $400 million). Put another way, unused U.S. funds—financed by U.S. taxpayers—were used to satisfy claimants’ judgments against Iran.
Moreover, the law also effectively laid out a three-tiered compensation regime. The first tier included cases that had received judgments against Cuba or Iran by July 20, 2002, or that were filed on one of five named dates (2/17/1999, 6/7/1999, 1/28/2000, 3/15/2000, 7/27/2000). Eleven cases qualified under this first tier, including Alejandre, Flatow, and nine other cases that rendered default judgments against Iran.
These 11 claimants had one of three options to recover damages under § 2002. Option 1 at the claimants’ disposal was to obtain 110 percent of the compensatory damages awarded in their judgments (plus interest) on the condition that they relinquish all rights to collect outstanding compensatory and punitive damages in the future. Option 2 was to obtain 100 percent of compensatory damages awarded in their judgment (plus interest) on two conditions: (a) that they relinquish all rights to collect any further compensatory damages awarded by U.S. courts; and (b) that they relinquish “all rights to execute against or attach property that was at issue in claims against the United States before an international tribunal, that was the subject of awards rendered by such tribunal” or “virtually every transaction involving Iranian or Cuban property within the jurisdiction of the United States” in satisfaction of their judgments for punitive damages.
Finally, Option 3 was to decline the first two options and pursue independent avenues to satisfy their judgments.
The second tier of cases (approximately six) were those that had won default judgments against Iran or were filed and remained pending beyond the dates specified in § 2002. To compensate these plaintiffs, President George W. Bush signed the Foreign Relations Authorization Act for Fiscal Year 2003 into law. The law amended § 2002 and brought cases filed against Iran on June 6, 2000, and January 16, 2002, under the fold of § 2002.
The final tier of cases were those that were filed after July 2002, won default judgments, but did not qualify under § 2002.
According to the Congressional Research Service, the distribution of awards varied across the three tiers even though the claimants were similarly situated. Claimants in the first tier of cases obtained either 100 percent or 110 percent of their compensatory damages awards, which totaled “nearly $100 million of the $193.5 million of Cuban blocked assets in one case against Cuba, more than $380 million in ten cases against Iran out of U.S. funds.” Claimants in the second tier of cases received only “about 20 percent” of their compensatory damages awards.
But the claimants who filed after July 2002, and were therefore not covered by § 2002, were the most disadvantaged, ending up having to “compet[e] with each other to lay claim to the blocked assets of terrorist States to satisfy the compensatory damages portions of their judgments.” To the extent claimants across all three tiers received compensation, the compensation came out of U.S. funds financed by taxpayer dollars because suits against Iran made up the largest share.
So, what does all of this have to do with Russia? It’s a kind of cautionary tale for what may happen if the Biden administration were actually to designate Russia as an SST.
It’s certainly true that an SST designation would restrict U.S. foreign assistance to the Kremlin, ban defense exports and sales, control the exports of dual-use items, and penalize persons and countries that continue to trade with the designated state. But existing sanctions already do these things. On the whole, the U.S.—and Ukrainians seeking to use frozen Russian assets to compensate Ukraine for damages suffered in the war—have more to lose than to gain from the marginal benefits of an SST designation.
Jocelyn Trainer’s piece on Lawfare details how nearly every SST-related restriction on Russia has already come to fruition as a result of the United States’s robust sanctions regime against Russia. Nearly all U.S. government agencies have cut their foreign aid to Russia since Russia invaded Ukraine in February 2022, except for the Department of Energy and the U.S. Fish and Wildlife Service. Their aid is limited, totaling approximately $1,600,000 and $108,000 “to prevent threat and sabotage of nuclear materials and facilities” and to research tiger habitats in Russia, respectively.
Moreover, the United States’s defense exports and sales to Russia ended in 2014, after Russia invaded Crimea. The U.S., in partnership with 37 nations, has also imposed export controls on dual-use items, effectively netting these exports to zero.
Finally, the United States is already authorized to impose secondary sanctions without any connection to terrorism but has strategically chosen not to expend its political and financial resources to impose secondary sanctions on actors that continue to do business with Russia. Taken together, it is unlikely that an SST designation would augment the United States’s authority to impose secondary sanctions as part of its Russia sanctions regime. Instead, if the U.S. aims to level sanctions on the Kremlin, it might realize a bigger bang for its buck by designating the Russian paramilitary group, known as the Wagner Group, and Russian proxies in the occupied Donbas region of Ukraine as foreign terrorist organizations under Section 219 of the Immigration and Nationality Act as amended (codified at 8 U.S.C. § 1189).
So what would be the main marginal impact of an SST designation? Under the FSIA, an SST designation would abrogate Russia’s sovereign immunity, paving the way for U.S. citizens—but not Ukrainian citizens—to sue the Russian state for acts of terrorism in U.S. federal courts. In practical terms, Russian frozen assets—totaling around $38 billion, or 155 times more than the Cuban assets that were held in the U.S.—would be up for grabs to satisfy the claimants’ judgments. If the Brothers to the Rescue and Flatow cases have taught us anything, it’s that such an outcome is best to be avoided.
Consider who would benefit. Like the Flatow family or the Brothers to the Rescue families, the family of any American citizen killed in a Russian strike or some other act of terrorism within the scope of 28 U.S.C. § 1605A might receive a favorable judgment in federal courts, if not a windfall. But consider also who would lose: all the similarly situated Ukrainians who might have an equally valid—or more valid—claim for compensation out of Russian assets. And then there’s the Ukrainian state itself. Why should this $38 billion be spent compensating individual victims at all, rather than, say, rebuilding Ukraine? Opening Russian coffers to American litigants and, in effect, closing off Ukrainians from these assets seems particularly perverse given the Biden administration’s ultimate goal of using Russian funds to help rebuild Ukraine. Though the United States is still identifying the best legally available way to do so alongside its allies, every dollar attached by U.S. plaintiffs would be one less dollar available to Ukraine and Ukrainians when the United States and its allies eventually establish legal mechanisms to provide them with some form of relief or compensation.
This is precisely the sort of “race to the courthouse” the Clinton administration worried about in the Flatow and Brothers to the Rescue cases. Because default judgments tend to be so large, getting in line quickly will matter, and because only American plaintiffs count, the possibility of a very small number of people getting a huge percentage of the assets is not trivial.
It may seem unlikely that a “race to the courthouse” outcome would result since the number of Americans victimized by Russia’s act of terrorism is small and includes mostly Americans who’ve joined Zelenskyy’s forces in Ukraine. But upon designating Russia as an SST, the capability to sue the Kremlin would exist. And that capability alone would give these American fighters and other volunteers in Ukraine a shot at claiming some share of Russia’s $38 billion of frozen assets.
Dipping into Russia’s frozen assets would also erode the United States’s leverage over the Kremlin. Preserving these assets as bargaining chips gives the U.S. a stronger hand when the war ends. These assets could play a critical role in getting Russia to comply with Ukraine’s efforts at postwar justice, for example. As with Vietnam, the assets could play an important role in persuading Russia to address important U.S. and Ukrainian concerns in the normalization process, including accounting for prisoners of war, returning thousands of missing children, and moderating military action in territories that may remain under Russian control.
Some observers may argue that the Biden administration could have its cake and eat it too—that is, it could designate Russia as an SST, while preserving Russian frozen assets for Ukraine’s postwar efforts. One doesn’t have to look further than the second President Bush’s handling of Iraq’s frozen assets in 2003 for a model here. After the attacks of Sept. 11, Congress amended IEEPA to allow some vesting of foreign assets where “the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” This amendment effectively cleared the way for Bush to seize $1.7 billion in Iraq’s frozen assets after the U.S. invasion of Iraq in 2003 and place them in a development fund for future use in Iraq’s postwar reconstruction efforts.
But here’s the problem. The United States is not engaged in “armed hostilities” with Russia. As Lawfare Senior Editor Scott Anderson and Chimène Keitner state, the U.S. is emphatic on this point, and with good reason:
[C]haracterizing Russia’s actions to date, including its cyber activities, as amounting to “armed hostilities” or an “attack” on the United States would run counter to the administration’s clear policy of limiting the risk of escalation by avoiding any suggestion that Russia and the United States are engaged in a direct armed conflict with each other.
And even if the Biden administration were to reverse course and argue that the U.S. is engaged in an armed conflict with Russia as a way to give the U.S. stronger footing to seize Russian assets, Anderson and Keitner make clear that domestic and international law, as well as U.S. constitutional law, would still confine the U.S. government’s authority to seize these assets.
Finally, to the extent a designation has symbolic value and would isolate Russia on the global stage, that value is marginal when weighed against Putin’s capabilities. Unlike Iran, Cuba, and Iraq, Russia’s stockpile of nuclear weapons and its threats to brandish them pose a greater liability to global security. Designating Russia as an SST could also mislead Putin into thinking the U.S. is advocating for regime change since one of the statutory ways to remove a country from the SST list is for a change in leadership. President Biden has made clear that the U.S. is not in the business of regime change in Russia. But an SST designation would undercut the president’s word, sow seeds of insecurity in Putin, and lead to a heightened risk of escalation. Ultimately, an even more isolated Russia after an SST designation would be more dangerous than a Russia that is handled with diplomatic care, even if that care may seem undeserved.
Today marks the 330th day since Russia invaded Ukraine on Feb. 24, 2022. Since then, Putin has deployed Russian civilians to the frontlines, illegally annexed four regions of Ukraine, and destroyed heaps of Ukraine’s critical infrastructure. Under his watch, Russian soldiers have ransacked, battered, and mass executed thousands of Ukrainians, rocketed civilian apartment buildings, and instigated a mass exodus of Ukrainians, scattering them across the globe. There is no question that calls to designate Russia as an SST are well founded factually.
But if the Flatow and Brothers to the Rescue cases have taught us anything, it’s that an SST designation would not just open U.S. courts to lawsuits against the Russian state for terrorism. More importantly, it would open Russia’s coffers to U.S. plaintiffs. The risk of depleting these assets at the expense of the Ukrainian people’s claims to them—and at the expense of their value to the executive branch in negotiating with Russia—is reason enough to be skeptical of whether the SST designation juice is worth the squeeze.