After his daughter died in a terrorist attack, Stephen Flatow won a historic judgment against her killers. But to collect the funds, he first had to battle his own government.
On the morning of April 9, 1995, three friends, American students studying in Israel, boarded a bus at the central station in Jerusalem. It was a few days before Passover, and they were headed to Gush Katif, a popular beach resort in Gaza, to swim and tan. The bus traveled southwest to Ashkelon, a small city on the coast of the Mediterranean Sea, just eight miles north of the Gaza Strip. There they transferred to the number 36, a bright red bus, with 60 or so passengers. Many of them were young Israeli soldiers headed to beach resorts or to their jobs on military bases.
Alisa Flatow, one of the young Americans, had long, wavy brown hair and wore a denim skirt, a white shirt, and sneakers. She sat behind the bus driver, next to the window, beside her friend Kesari Ruza. The third girl, Chavi Levine, sat behind them. The red bus left Ashkelon and headed south on Highway 4 toward the Gaza Strip. Shortly after the bus crossed the unmarked border, two Israeli military armored vehicles pulled alongside to escort it through the Palestinian territory. The girls dozed as the bus passed plowed fields and greenhouses. They neared an Israeli settlement called Kfar Darom. Located between two military posts, it had a fence around it, like a compound.
Years later, Kesari would recall the moments that followed as a stream of blurry footage with a few sharp scenes. A loud and dull explosion. The window beside her broken. Was it rocks? Alisa falling toward her, eyes open, hands strangely curled. The bus kept rolling, and Chavi stood up in her seat and asked what was going on. Kesari told her to get down, and they both dropped to the floor.
When the bus came to a stop a few seconds later, they saw passengers bleeding, wounded, and groaning. Someone told them to get off. Alisa lay near the door. She wasn’t moving, but she didn’t look hurt: Her face was clean; there was no blood. Outside, the military escorts told them to move away, and then Kesari saw Alisa on the ground and EMTs arriving, cutting away her clothing, looking for injuries while someone held an IV bag over her body. Helicopters landed in a field nearby, and Alisa was put on a stretcher and carried to one of the choppers. Where is she going? they asked. No one could say for sure. Kesari’s hair was matted with blood, and when they found their luggage among the wreckage, the bags were dotted with pieces of flesh. Eventually, they located an ambulance headed to a hospital, and they rode next to an injured Israeli soldier.
At the hospital, Kesari and Chavi described Alisa to a social worker. Yes, there was a young woman who might match that description—she was coming out of surgery, they were told. The social worker took them to a ward. They saw a young woman on a bed. Chavi and Kesari couldn’t tell if it was Alisa. The young woman’s hair had been shaved off, and her face was badly swollen. They asked to see her clothes and recognized the skirt and sneakers. Yes, this is Alisa, they told the doctors.
On the morning of the bombing, Stephen Flatow was headed to temple near his home in West Orange, New Jersey. He was driving his eldest daughter’s car while she was studying abroad. Before he got to the end of his driveway, he heard a news report on the radio. A suicide bomber had blown up a bus in the Gaza Strip. Flatow knew instantly that his daughter was involved. He couldn’t explain how he was so sure that she had been on that bus. He felt it to be true.
Flatow, a 46-year-old lawyer who worked for a small insurance company, continued driving to Congregation Ahawas Achim B’nai Jacob and David. He didn’t want to alarm his wife, Rosalyn, and their four other children.
In the middle of the service, a phone rang. Flatow knew it was for him. On the line was Rosalyn, who had heard from the father of one of Alisa’s friends in Israel that Alisa had been on a bus that had been attacked. Flatow shared the little he knew with his friends at synagogue and ran out. Back home he started making calls, first to the Israeli consulate and then to the State Department in Washington. His friends began reaching out to their own contacts in Israel and soon confirmed that Alisa was at a hospital called Soroka Medical Center in the town of B’er Sheva, some 50 miles east of Gaza. Alisa’s boyfriend, Alan Mitrani, a fellow student at Brandeis, spoke to a nurse at the hospital ward, who explained that Alisa hadn’t lost a lot of blood and her pulse was fine, but she was going into surgery.
Upstairs, Alisa’s brother and sisters were waking to the chaos. Gail, Alisa’s younger sister by two years, awoke to the sound of her mother and sister whispering. “What haven’t I heard yet?” she asked. Gail had returned from Israel a couple of weeks earlier. When she found out what happened, she felt like her emotions were being sucked down a drain, leaving her empty and exhausted.
The Flatows had raised their five children in the tight-knit Orthodox Jewish community of West Orange. Stephen and Rosalyn met before he started law school in Brooklyn. He was a big guy and gregarious; she was a stately brunette, already working as a health care actuary. They married and, after he graduated, moved to New Jersey, where he began a career in real estate law. The couple had come to religious observance later in life, after Alisa was born in 1974. “We were normal American Jews—we celebrated Rosh Hashanah and Yom Kippur,” said Flatow. But as a four-year-old, Alisa begged her parents to send her to a Jewish school, and soon they were observing the Sabbath and keeping kosher. Under her influence, the Flatows became a passionately observant family, with Alisa as the moral center. “We made a 180-degree change,” said Flatow.
Alisa had deep dimples and a warm smile. She visited Israel at age 11 and fell in love. When she started at Brandeis, she was already planning her sixth visit for her junior year. On the morning of her trip to Gush Katif, Alisa called home, where it was still Saturday night and her parents were going to bed. The sun was rising in Jerusalem, and she was about to leave for the bus station. Instead of panicking about her traveling to Gaza—the heart of the Israeli-Palestinian conflict—Flatow asked her about the resort they’d chosen. She told him that the hotel she was staying at had separate times for men and women to swim, in accordance with a strict Orthodox interpretation of Jewish law.
By this time, Alisa knew the ropes of traveling in Israel: how you had to bring your own toilet paper and plenty of cash because it wasn’t easy to use a credit card. And she had an agreement with her dad for venturing outside Jerusalem. Always go by public transportation, with a friend, to a well-known destination.
Now the Flatows waited for information on Alisa’s condition. A nurse called and translated a physician’s words into broken English. Post-surgery, Alisa was breathing and had a steady heartbeat, but she was unconscious. Another doctor called, one who spoke better English. Alisa’s condition was critical. A CAT scan showed hemorrhaging in her brain from a laceration made by a sliver of shrapnel that had pierced her skull. It had caused her brain to swell, and the doctors had removed part of her skull to allow the tissue to expand. Following the surgery, Alisa was unconscious, and the doctors didn’t know if they could stop the bleeding. “We suggest you come right away,” the doctor said.
The next day, Flatow flew to Tel Aviv. As his plane landed, he was ushered to the front to be the first passenger to disembark. American embassy workers and Israeli Foreign Ministry personnel waited on the tarmac. Two hours later, Flatow was standing next to his daughter’s hospital bed.
Only decades later would it become apparent that Flatow’s trip to Israel was the first part of a journey to hold accountable those who attacked Alisa’s bus. In her name, Flatow would walk the corridors of power in Washington, winning allies among senators and congressmen, and creating an unexpected adversary in President Bill Clinton. His determination to wring some meaning from his daughter’s ordeal would force American lawmakers to develop new tools for pursuing state sponsors of terror. His extraordinary quest, aided by two brilliant Washington lawyers, has provided families whose loved ones died at the hands of ISIS in Paris and in Syria a chance at recourse. And because of Flatow’s unyielding obsession with justice, the governments of Sudan, Iraq, Jordan, and Libya have been successfully sued in American courts, with judges awarding almost $20 billion in damages, each verdict a testament to a father’s devotion to his child. But before all that, he was just a father rushing to his daughter’s side.
Somewhere in Flatow’s consciousness lingered scenes from movies in which a father holds his child’s hand, whispering in her ear. At Alisa’s bedside, he took her hand and whispered, “Daddy’s here.” She didn’t say anything. “If you can hear me, squeeze my hand,” he said. When he let go, her arm fell limp.
In a side room, he huddled with Alisa’s doctors. Her brain had continued bleeding, and the damage was irreparable. She could no longer breathe on her own. There was no hope that she might eventually recover.
The room was quiet except for a fan pushing around hot air. Someone handed Flatow a cup of orange soda. He noticed that the doctors exchange looks. “I have a question for you,” Haim Reuvini, one of the physicians, said.
“You want her organs, don’t you?” said Flatow. A few weeks earlier, he had read in a newspaper that Israel was experiencing a severe shortage of organ donors because Jewish law requires bodies to be buried intact.
“We can save as many as six lives,” explained Reuvini. A line from the Talmud echoed in his mind: “Whoever saves one soul from Israel, it is as if he or she saved a universe.” He also knew that Alisa’s attachment to the Israeli people was immense; he couldn’t say no.
He called Rosalyn to discuss the decision. Their consent caught the doctors by surprise; they had no documents prepared. One doctor grabbed Alisa’s chart and wrote out a consent form on a blank page. Then Flatow went back to Alisa’s room and sat for several hours, holding her hand, talking to her, and crying. That afternoon, Alisa was taken off life support. Soon after, the doctors removed her heart, pancreas, liver, lungs, and kidneys.
That evening, Flatow left B’er Sheva for Tel Aviv to meet with American officials about the logistics of bringing Alisa’s body home. Back at his hotel, he received a phone call from President Clinton. The president expressed his condolences and told him about a conversation he’d had with his wife, Hillary, at breakfast. They had wondered whether they would have the same strength if their own daughter had been injured in an attack. Before hanging up, the president said he would help find those responsible for the bombing.
The next morning, the Jerusalem Post reported that just hours after the attack, a group called Palestinian Islamic Jihad (PIJ) had claimed that a 22-year-old member named Khaled al-Khatib had driven a truck into a bus on the highway in the Gaza Strip. Only half the bomber’s ordnance had detonated, but the shrapnel, metal, nails, and ball bearings embedded in the explosives killed eight passengers, including Alisa.
That evening, Flatow accompanied Alisa’s body to Ben Gurion Airport. He was ushered to the VIP lounge, crowded with reporters; the news of Alisa’s organ donation had been reported in the Israeli papers as well as The New York Times, USA Today, the Los Angeles Times, and the Associated Press. “I don’t understand what all the fuss is about,” he said to an Israeli Army chaplain next to him. “You have no idea what you’ve done for us,” a reporter interjected. “You did something we don’t do for ourselves. You haven’t blamed us for what happened to your daughter. Instead, you gave us the gift of life.”
Flatow cried as he recited the Jewish prayer for the dead over her casket. “The Merciful One will protect her soul forever and will merge her soul with eternal life,” he said in Hebrew and boarded the plane.
The next morning, Flatow landed at Kennedy Airport, where officers from the New York City, West Orange, and Port Authority police waited, along with personnel from the State Department. A motorcade escorted him to his house, now under siege by the media. His rabbi, Alvin Marcus, put his hand up in front of the gathered reporters and told them, “Alisa died al kiddush Hashem, sanctifying the name of God. That’s all you need to know.” Two hours later, the Flatows drove to their temple for the funeral. School buses and chartered coaches from as far as Boston were parked along the road. A bomb squad had searched the synagogue before anyone was allowed to enter. Two thousand people were present. Eight pallbearers carried the pine coffin draped in the Israeli flag. By now, Flatow had been awake for several days, and Rosalyn, who had kept everyone updated throughout her husband’s journey to Israel, could barely speak.
After the funeral, the Jewish tradition of shiva—seven days of mourning for the dead—began at the Flatows’ house. It was the week of Easter and Passover, and in his weekly radio address, President Clinton extended the condolences of all Americans to the Flatows. “The dark forces of terror test the faith of thousands of Jews and Arabs struggling to do the right thing,” said the president. “To these righteous people, I say: Carry on. America is with you.”
The day after the Flatows’ shiva ended, a 26-year-old American by the name of Timothy McVeigh detonated a bomb in front of a federal building in Oklahoma City, killing 168 people. The bombing brought home the threat of terror, spurring lawmakers to introduce sweeping counterterrorism legislation to stem the violence. Six weeks later, the Senate passed a bill that increased the compensation and assistance available to American victims of terrorism, allowed the government to deport immigrants suspected of such acts, and banned fundraising for terrorist organization in the U.S. It included $1 billion to fight domestic terrorism.
A year later, the bill passed in the House of Representatives, and on April 24, 1996, the South Lawn of the White House was crowded with families whose loved ones had died at the hands of terrorists. Pan Am Flight 103, 259 dead. The 1993 World Trade Center bombing, six dead and over 1,000 injured.
“Your endurance and your courage is a lesson to us all,” President Clinton said at the signing. “Your vigilance has sharpened our vigilance.”
Flatow had declined his invitation to attend the ceremony. He was still trying to cobble his life back together. It had been 380 days since Alisa was killed. As a family, the Flatows had taken a defiant position to their devastating loss: Life went on. Francine, who was 15, recalled asking her mother whether she would have to go to school after Passover ended. “Of course you do,” said Rosalyn. “Daddy’s going to work, you’re going to school.” Gail returned to Israel within a couple of weeks, and Francine followed that summer.
Still, the specter of grief affected Alisa’s parents in dramatic ways. Rosalyn internalized the pain of losing her eldest child. She could barely hear Alisa’s name, let alone speak it aloud. For a long time, Stephen lost the ability to dream at night. “You just black out,” he said, “that’s how emotionally exhausted you are.” On Friday nights, when he would say the evening prayer, he couldn’t make it through without crying. “My father is an open book,” said Francine. “If he felt like crying, he cried. If he felt like laughing, he laughed. And there were times when it happened at the same time. It let us know as kids that we’re all hurting, there’s no need to hide it or deny it.”
Flatow’s pain also seemed to animate him, transforming him into a sensitive, passionate, and driven person. Matrani, Alisa’s boyfriend, later described this change as though Alisa’s character had transferred to her father. He began speaking at synagogues and schools about his daughter’s life, several times a month. Later he understood that this impulse was a kind of therapy for the trauma of losing his child. “I had to speak and make people cry for Alisa,” he explained. “There’s a lesson to be learned: You don’t let the bastards get you down.”
After a speech at a synagogue in Queens, a rabbi approached Flatow and asked why he wasn’t using the new counterterrorism legislation to get justice for Alisa’s death.
The rabbi offered to put Flatow in touch with a lawyer in Washington, D.C., named Steven Perles who might be able to help.
Tall and thin, with spectacles, a strong jawline, and a receding hairline, Perles had an unpretentious appearance that belied tremendous intellectual energy and ambition. The son of Boston academics, Perles had worked for years as the chief legislative assistant and staff attorney for Alaskan senator Ted Stevens. In the early 1980s, he founded his own firm in D.C., and some of his first cases included complex suits involving foreign governments such as Japan and Nigeria. One of his first highly publicized cases was Hugo Princz v. Federal Republic of Germany.
Hugo Princz was a 72-year-old American who had been held in a Nazi concentration camp during World War II. Princz had sought reparations for decades, but the German government claimed that he was ineligible because he was an American citizen.
In taking on Princz’s case, Perles challenged centuries of international legal standards that gave sovereign states exemption from the jurisdiction of foreign courts. In the United States, Congress had upheld this legal immunity as recently as 1976, when it passed the Foreign Sovereign Immunities Act (FSIA). It gave judges the power to review cases and determine whether foreign countries could be sued under certain exceptions, which were invoked regularly in commercial cases. But by 1995, no judge had ever decided in favor of an individual plaintiff.
Perles believed Princz’s case was an opportunity to create a new legal precedent. Here was an example of an atrocious injustice against an American citizen, yet the culprits were protected by the laws of Princz’s own country.
Perles ultimately lost the case, but he received a lot of media attention, particularly in New Jersey, where he lived in Highland Park, not far from West Orange. Flatow had followed the case in the newspapers.
When Perles received Flatow’s phone call, he’d already heard about Alisa. “I want something to come from my daughter’s death,” Flatow told him.
Flatow’s case came at the right time. The new counterterrorism legislation passed in the wake of the Oklahoma City bombing included a little-publicized amendment that lifted immunity for governments guilty of injury or “death that was caused by an act of torture, extra judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” The amendment created an unprecedented opportunity for families of victims to go after state sponsors of terrorism.
Flatow found an ally in Perles, who possessed an unshakable moral compass and a formidable work ethic. “You detonate a bomb on a bus that has a U.S. passport holder on it, I don’t care whether they are Arab-American, Jewish-American, Irish-American, Baptist-American,” he said. “I am going to chase you to the end of the earth. I mean it. I chase these people to the end of the earth.”
Perles believed he could help Flatow get justice by targeting those who had given the PIJ the money to carry out the attack. They would sue the Islamic Republic of Iran.
The Israeli-Palestinian conflict had created unlikely bedfellows in the Middle East. The alliance between Iran and the Palestinian Islamic Jihad was surprising because, while the PIJ’s leaders were Sunni Muslims, the government of Iran was Shia. The organization had been founded in the 1970s by three Palestinian students inspired by the Islamic revolutions in Iran and had since split into factions. The PIJ didn’t build schools or mosques or provide social services to civilians; their purpose was to eliminate the State of Israel.
The PIJ had proven itself to be a deadly operation. In 1987, they assassinated an Israeli military-police captain. In January 1995, they blew up a military bus and killed 19 soldiers. Israeli authorities believed that the attack had provided the model for the one that killed Alisa. The PIJ’s leader, Fathi Shaqaqi, had publicly praised Iran, appearing in photographs with Iranian ministries and saying in 1988 that he prayed to “Allah to protect Imam Khomeini so that he will enter Palestine and we shall hand over the keys of Nazareth and Jerusalem to him.” In 1994, Shaqaqi told a journalist that the PIJ had received $3 million from Iran. Intelligence agencies believed Iran provided all of the PIJ’s funding.
For Flatow, the formidable challenges of bringing a lawsuit against an isolated government such as Iran were overshadowed by what might be accomplished in the process. Here was an opportunity to bring the world’s biggest sponsor of international terrorism into a courtroom. “We expected this to be a ten-year slog, which we were actually welcoming,” said Flatow. “Through litigation we could demonstrate to the world what kind of nation Iran was and how it sponsored terrorism.”
There were several immediate obstacles. One was the fact that Perles himself was Jewish. I can’t have this case be the Jews versus the Palestinians in our federal court system, he recalled thinking.
He needed another lawyer, a scholar of personal-injury law who was charismatic in trial. And in D.C., the personal-injury bar was split between two groups, Jews and the Irish. Who is the least Jewish trial lawyer I know? he wondered.
Then he remembered Thomas Fortune Fay, whose office was in the same building as Perles’s. They’d even had lunch a few times. Husky and broad shouldered like a pit bull, with slicked hair carefully parted, Fay struck Perles as a fighter. He arranged a meeting and told Fay point-blank, “I need to hire a brawling Irish litigator.”
“That’s me!” said Fay.
Before they could proceed, they had to resolve some questions posed by the recently passed antiterrorism legislation: In which courts could such lawsuits be filed? What punitive damages could plaintiffs receive? The legislation didn’t specify. Fay set to work formulating a new amendment to the FSIA, while Flatow and Perles began walking the halls of Congress to lobby for support.
Perles had many relationships in Congress from his time as a staffer for Senator Stevens. But during meetings on the Hill, he often stepped aside so Flatow could lead. “It’s always been my observation that an articulate client is better than an articulate lawyer—and he is very articulate,” said Perles. Flatow would tell Alisa’s story and explain how Iran had sponsored the attack. “Iran was acting through proxies,” said Flatow. “Why should they get a pass on it?”
In the Senate, they searched for someone who would move the bill through the legislative process. They knocked on doors and cornered whomever would listen. “It was a lot of work: hot, muggy, stinky, sweaty,” said Flatow. “We would run from one side of the Capitol building to the other, from the Senate building to the House building, trying to button people.” They found their first ally in senator Frank Lautenberg, who represented New Jersey. Lautenberg was in Israel on the day Alisa was killed, and he had been personally moved by the event. They gained the support of senators Chuck Schumer and Joe Lieberman. On the House side, they convinced representative Jim Saxton of New Jersey to sponsor the legislation.
Their months of lobbying paid off on September 30, 1996, when Congress enacted the Civil Liability for Acts of State Sponsored Terrorism amendment. Known as the Flatow Amendment, it created a legal cause of action—a set of facts that justify the right to sue—and allowed private citizens to recover punitive damages from foreign countries.
The amendment was everything that Flatow and his legal team needed to move forward with their lawsuit. But it also set the stage for a conflict within Washington’s corridors of power. By giving the judiciary control of these terrorism cases, Congress shifted foreign-policy influence away from the presidency and into the hands of citizens and judges. In hindsight, it’s not surprising that such a move would arouse the ire of the White House and the State Department. “That’s a no-no, apparently,” chuckled Flatow. None of them could foresee the fight ahead.
On February 26, 1997, Perles and Fay filed Flatow’s complaint against the Islamic Republic of Iran. A few hours later, Flatow held a press conference on Capitol Hill. He stood next to a large photograph of Alisa, with congressman Jim Saxton and senator Frank Lautenberg looking on.
“Iranian officials need to be held accountable for the agents they pay to carry out terrorist activities,” said Lautenberg. “I wish the Flatow family well in their quest for justice that will benefit us all.”
The lawsuit had a litany of defendants, including the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, and President Ali Akbar Hashemi Rafsanjani. “I’m not a sovereign nation,” said Flatow, explaining why he was suing Iran. “I cannot wage war.”
Perles and Fay had presented an unusual legal argument for compensatory damages called solatium, from the medieval Latin word for solace. Courts began awarding compensation for wrongful death in the middle of the 19th century, calculating the amount based on how much income an individual represented. But eventually, they recognized that the death of spouses, parents, and children was more than an economic loss; it extracted an emotional cost from families. During the Vietnam War, the American government had adopted the concept of solatium when it gave cash payments to Vietnamese families whose loved ones were accidentally killed, a practice carried forward to the conflicts in Iraq and Afghanistan.
Now Perles and Fay argued that the tragedy of Alisa’s death had been amplified by the malice behind the attack, which transcended even premeditated murder. The emotional anguish merited that the court factor in solatium as well as economic losses. On this matter, the lawsuit included an eloquent passage on the nature of grief that echoed Flatow’s experience in the nearly two years since he had lost his daughter.
“Individuals can react very differently even under similar circumstances; while some sink into clinical depression and bitterness, others attempt to salvage something constructive from their personal tragedy. Such constructive behavior should not be considered as mitigating solatium, but rather as an equally compensable reaction, one in which courage to face their own mental anguish prevails in order to survive, and in some circumstances, to benefit another.”
They asked for $150 million in damages.
When an American citizen is killed in a terrorist attack abroad, the customary practice is for an FBI team to investigate. But following the bombing that killed Alisa, Palestinian president Yasir Arafat refused to let the FBI into Gaza. In order to present their case for damages, Perles needed witnesses, first responders, and doctors who could testify about the bombing and Alisa’s suffering. In September 1997, Perles flew to Jerusalem, accompanied by his 11-year-old son, to ask the Israeli attorney general for help.
Perles found the city on edge, with heavily armed security guards and military personnel dressed in body armor patrolling the streets. A week before he arrived, three Hamas suicide bombers had blown themselves up on Ben Yehuda Street, a ten-minute walk from his hotel. As he made his way to the Justice Ministry, in the Arabic section of Jerusalem, Perles saw how the threat of terror had become a part of daily life.
When he arrived at the meeting, Perles asked for permission to send Fay to investigate. “I know Arafat turned these people away, but I don’t care,” he said. “I’m not subject to diplomatic niceties.” The official agreed and promised to provide a military escort.
Flatow had coordinated a vacation in Jerusalem to coincide with Perles’s trip, and one afternoon they met in the lobby of the Sheraton in the center of the city. An older man sat nearby with a bag of groceries. He finished his drink and walked out. That’s when Flatow saw that the man had left behind the bag. He threw Perles’s son to the floor and—though no small man—pancaked him to protect him from the bomb he was sure was about to explode. It was a false alarm.
With the support of the Israeli government, Fay began planning a trip to gather witness testimony. He enlisted Victor Holmes, a friend and videographer, to film the depositions. The two shared a blustery sense of humor. Just before their departure, Holmes turned up at Perles’s office and showed him a T-shirt he had bought for the trip: it was Day-Glo orange and said Don’t shoot, I’m a Lutheran in Arabic.
“Do you know what one Arab sniper said to another?” said Perles.
“What?” said Holmes.
“What’s a Lutheran?”
Holmes threw the shirt in the trash.
When they arrived in Jerusalem, Fay sought out government officials’ help in identifying witnesses, and a source gave him a list of the people on the scene of the Kfar Darom bombing. Among the first people Fay contacted was Orit Taft, a military radar technician who was riding the bus back to her post. She had refused to be treated for her injuries until every other person had been evacuated. The Israeli government later awarded her a medal.
After she finished her deposition, Taft offered to go with Fay and Holmes to Kfar Darom to view the scene of the bombing and help them locate other witnesses. They arrived in Gaza a day after Kfar Darom had been strafed by Palestinian snipers. First they sought out David Shaenbaum, an American man living in the village, listed as a witness at the scene of the bombing, “I know your voice,” Shaenbaum said to Taft after meeting her. “You’re the military officer that told me if I didn’t put down my camcorder, you’d shoot me yourself.”
Fay and Holmes went on alert: Camcorder? Shaenbaum, it turned out, had been tinkering with his new video camera when he heard the bomb blast. He didn’t know if it recorded anything, but he offered to find the tape. A few minutes later he returned with the cassette, and Fay and Holmes watched as the recording started and the image of smoke and flames appeared. Then they saw sky and dirt; Shaenbaum had dropped the camera on the ground.
But the vantage point changed as someone picked up the recorder and continued shooting. Now Shaenbaum was in the frame holding a plasma bottle next to Taft, and on the ground below them was Alisa. The camera panned to show Israeli Defense Force vehicles speeding across a field and helicopters touching down. Several people picked up a stretcher with Alisa on it and delivered it to one of the choppers. Altogether there was 20 minutes of footage that they could present in court to show the horror of the bombing.
“No one even knew that video existed,” said Fay. “It was invaluable to us.”
Next, Fay and Holmes deposed the doctors who had worked to save Alisa’s life and the individuals who had received her organs. Perhaps most crucially, they also found Reuven Paz, who had served with Shin Bet, the Israeli internal security service at the time of the bombing. In the aftermath of the attack, Paz had intercepted a radio message from Iran congratulating the PIJ on the mission.
In 1984, the State Department labeled Iran a state supporter of terrorism. But if Perles and Fay were going to bring Iran to court and win, they needed to establish that there was a financial link between the Iranian government and the PIJ. To do this, they called on an economist named Patrick Clawson, who had worked at the International Monetary Fund and the World Bank. Fluent in French, Hebrew, and Farsi, Clawson had extensive knowledge of Iranian and Middle Eastern politics and economics. For years he had studied Tehran’s stock exchange and understood the web of relationships between the Iranian government and various companies. On paper these corporations were private entities, but in truth most were controlled by government ministries and officials. To Clawson, the stock exchange became a tool for understanding the country’s cloaked financial activities and ambitions.
Clawson had also closely followed Iran’s support for Islamic extremist organizations, scouring records and parliamentary transcripts to track where money was being funneled. In 1995, Fathi Shaqaqi, the leader of the PIJ, had been assassinated in Malta, and the organization’s new head, Ramadan Abdullah al-Shallah, was not well known and needed money to build a reputation for himself. Clawson saw evidence that Iran had increased funding to the PIJ to help him do so, through attacks including a March 1996 bombing of a shopping mall in Tel Aviv.
Meanwhile, a German trial gave Clawson another piece of the puzzle. Several Iranian and Lebanese nationals stood accused of assassinating three Iranian-Kurdish dissidents and their translator at the Mykonos Greek restaurant in Berlin in 1992. The Mykonos case had a central witness, a former top Iranian intelligence official who testified that all decisions about terrorist activities were made by a special committee that included the president of the country and Ayatollah Khamenei himself.
Clawson had studied Iran’s 1992–93 foreign-exchange budget, which included a line item for support of the Palestinian revolution. Based on this, Clawson’s conservative estimate was that Iran was spending around $75 million a year to fund the PIJ and other terrorist organizations. Further, he believed Iranian government leaders to be rational calculators who would change tactics if a particular approach proved too costly. After the capture of the U.S. embassy in Tehran in 1979, during the Islamic Revolution, for instance, the American government had seized billions of dollars of Iranian assets and imposed extreme sanctions on the country. The funds had provided powerful leverage for American officials to gain the release of the embassy hostages; when the 52 Americans were released, Iran got billions in return.
Perles wanted to know: What sum would get Iran’s attention now? Clawson believed a judgment of anywhere from $150 million to $300 million in damages would help Flatow attain his goal of getting the Iranians out of the business of attacking Americans.
That summer, five months after filing the complaint, Flatow attended a fundraiser at the Plaza Hotel in New York, knowing that President Clinton would be present. He handed Clinton a letter urging him to hold “Mr. Arafat’s feet to the fire of accountability” in connection with the release of a prisoner who was a member of PIJ. He reminded the president of their previous conversation: “Just because my daughter is not here with us on earth does not mean that I stop doing things for her.”
Clinton was in a difficult position. The Middle East and its multitude of conflicts had been a focus since the early days of his administration. Madeleine Albright, Clinton’s secretary of state, recalled that she and the president were “intrigued by the possibility of better relations with Iran, whose strategic location, cultural influence, and size made it a pivotal state in one of the world’s most combustible regions.” In her memoir Madam Secretary, she wrote that before she was nominated, Clinton spoke to her of his desire to create breakthroughs in relations with Iran, the Middle East, and the Islamic world.
In August 1997, a new president had been elected in Iran. Mohammad Khatami was a reformist, brought to office by an unexpected 70 percent of Iranian voters. He told CNN at the beginning of his term that he wanted to create a crack in the “wall of mistrust” between Iran and the American people.
Now Albright and Clinton saw an opening. In October 1997, soon after Fay and Holmes returned from their trip to Israel, Clinton sent a message through the Swiss embassy in Tehran inviting Iran to meet with U.S. officials, without preconditions. It never happened, but he continued his overtures; in January 1998, at the end of Ramadan, he videotaped a message addressed to Iranians that said he regretted “the estrangement of our two nations.”
The team had a skeptical view of a possible rapprochement with Iran, given its conservative history. “Our view was there were two kinds of leaders,” said Perles, “extremists and even more extremists.”
Flatow, meanwhile, wrestled with his grief. That summer the first animal clone was born in Scotland. After Flatow read about the sheep they called Dolly, he began composing a short story in his head: He took a lock of his daughter’s hair and cloned another Alisa.
On March 2, 1998, the first hearing for Flatow’s lawsuit began at the imposing U.S. District Court building on Constitution Avenue, half a mile northwest of the Capitol. The suit would be presided over by federal district judge Royce Lamberth, a native Texan who had been appointed by President Ronald Reagan and was known for tough and sometimes unpredictable legal decisions.
Perles and Fay arrived looking like a study in contrasts, the skinny Perles and the hefty Fay, wondering whether the lawyers representing Iran would even appear. As required by law, Perles had mailed a copy of the complaint, translated into Farsi, to the foreign minister in Tehran. Four months later it was returned to Perles: The envelope had clearly been opened, and the words DO NOT USA were written across the back. When Flatow, accompanied by Rosalyn, daughters Gail, Ilana, and Francine, and son Etan, entered the courtroom, it became clear that they would not be meeting face-to-face with their opponents. Judge Lamberth described Iran’s glaring absence and return of documents as “contumacious conduct,” meaning stubbornly disobedient to authority.
At 10:05 a.m., Fay delivered his opening statement, outlining the historic nature of the lawsuit. “The Congress, in the amendments to the Foreign Sovereign Immunities Act, which allows us to proceed today, has seen fit to give each individual American citizen, each individual the right to proceed against that foreign government,” he said. “As Your Honor knows, this is truly an epochal case in that we have proceeded, not under the cover of government, but as an individual.”
Altogether, Perles and Fay had 18 witnesses, beginning with the recorded deposition of Orit Taft. Before the videotape started, Fay attempted to lighten the mood. “With Your Honor’s permission, I’ll simply stand, and hopefully, this will have a beneficial weight-loss result.”
“We could all use that, couldn’t we?” said Judge Lamberth. “Except Mr. Perles, of course.”
When it came time to show the videotape of the bombing site, Perles suggested that Flatow might want to leave. “I’d rather stay, Your Honor,” replied Flatow. For the first time, he watched the footage of Alisa being carried off the bus and laid onto the ground, her body limp. Fay then showed David Shaenbaum’s videotaped testimony. Kesari Ruza, who was now a law student at the University of Pennsylvania, appeared in person to describe her experience during the bombing. After the lunch recess, it was Flatow’s turn to take the stand.
“You were the father of Alisa Flatow?” began Fay.
“I’m still the father,” said Flatow.
Flatow described Alisa, starting with her voracious reading at an early age, her straight A’s, her interest in music and religion, her strong moral instincts. She had found time to volunteer at senior-citizen centers and taught Soviet immigrant children how to play baseball, her favorite sport. He described how the family had traveled to Israel in January 1995 for a ten-day visit with Alisa and Gail. It was the last time the family was together. He told of his experience returning to Israel after the bombing and the decision to donate her organs.
“Can you describe the effect on your wife, Rosalyn?” asked Fay.
“I think it’s destroyed her.”
One of Alisa’s best friends at Brandeis, Lauren Sloane, painted a portrait of a funny and empathetic young woman. Her humor was witty, even intimidating. Alisa could come up with a funny line about almost anything before “you could blink,” said Sloane. She had a diverse group of friends, religious and nonreligious; she made nothing of sitting in the bathroom at night to comfort someone who’d drank too much.
In a letter to Sloane, Alisa had once written: “Do what you’re happy doing, and if something isn’t the way you want it, fix it.”
By 4:30 p.m., the first day of testimony was over. Everyone, it seemed, had shed tears, including Judge Lamberth. Perles had asked a rabbi to be present during the trial. At one point, Perles could hear Rosalyn breaking down and turned to ask the rabbi to comfort her, only to see him crying as well.
The next day, the plaintiffs called four expert witnesses: Patrick Clawson; Harry Brandon, a former counterterrorism FBI agent, who testified about the structure of the PIJ; Jerome Paige, an economic analyst who had conducted a life-earnings estimate for Alisa, based on her expressed desire to become an occupational therapist; and Reuven Paz, the former Shin Bet member who had intercepted the radio message between Iran and the PIJ.
Judge Lamberth adjourned the proceedings by 2:45. A week later, the Flatows returned to the courtroom, and Judge Lamberth began reading his decision. “The Court has examined the evidence and is satisfied that the plaintiff has established, by evidence satisfactory to the Court, that the death of the decedent was caused by the actions of the Islamic Republic of Iran in sponsoring this terrorist attack of this suicide bombing in Israel that resulted in the death of Alisa Michelle Flatow.”
As Lamberth continued, Perles could hear Flatow exhale, releasing years of stress. The judge awarded $1 million for the pain and suffering Alisa experienced before her death. He gave $20 million in solatium to Alisa’s family. And then he delivered his judgment for punitive damages. “The court is determined to award $225 million in punitive damages against the Republic of Iran and the other defendants in an effort and desire by the Court to deter other terrorist acts against Americans who happen to be in Israel or elsewhere.”
The judge turned to Flatow. “Mr. Flatow had done exactly what Congress has empowered him to do, and this Court has followed its duty. I hope that the rule of law can contribute ultimately to the solution of the problems presented in this case, where an innocent girl was needlessly killed,” he said. “It doesn’t contribute to the Mideast peace process or to the Mideast anything else to kill an innocent girl like this, and the Court cannot be stronger in condemning this kind of action.”
Outside the courthouse, Flatow, clean-shaven and in a beige raincoat, spoke to the assembled reporters with a stoic Rosalyn beside him. “These people are not heroes. They are not martyrs. They are traitors to the human race,” he told them. “I think Alisa is smiling on us today.”
The celebratory mood was short-lived, however: The morning after Lamberth delivered his verdict, the Los Angeles Times ran a story about its implications should the U.S. and Iran be moving toward rapprochement. “Our policy doesn’t get affected by court judgments,” Jamie Rubin, a State Department spokesman told the paper. “We believe the best way to resolve the differences we have with the Iranian government … is through direct dialogue.” To Flatow and Perles it was an unexpected declaration that the Clinton administration was no longer on their side.
Perles and Fay launched an inventory of Iranian assets in the United States that they could draw on to cover the damages owed to the Flatows. Following the overthrow of the Shah in 1979 and the taking of hostages from the U.S. embassy, President Jimmy Carter froze Iranian assets in America. Iran had lost billions, not only in property and cash, but also in funds deposited in American banks abroad.
When the two countries agreed to the Algiers Accords in 1981, it stipulated the release of the embassy hostages and the establishment of a claims tribunal at The Hague where future commercial disputes could be settled between the countries. Additionally, American hostages were prevented from suing the Iranian government, and some $4–5 billion of Iran’s money was returned. Estimates of the amount still held in the United States varied from millions to many billions, including the former Shah’s private holdings. In order to collect the judgment, Perles and Fay needed to know precisely how much money was left and where it was located.
On June 5, 1998, the lawyers served a subpoena to the Treasury Department, and a week later to the State Department, requesting a list of assets in which Iran had an interest. The denial came swiftly: The Department of Justice responded that the subpoenas would be overly burdensome in their scope and, in a letter to the court, argued that they would require the production of documents protected by “state secrets, law enforcement, and deliberative process privileges.”
The U.S. government also maintained that it didn’t have any Iranian assets. In a letter to Lautenberg on June 10, 1998, State Department assistant secretary of legislative affairs Barbara Larkin argued that the government regularly received requests from Congress and American citizens seeking to satisfy claims using frozen assets. But since the hostages were freed in 1981, she wrote, the government held no Iranian assets, save for a “small amount” that was under arbitration.
Perles and Fay had other ideas. They knew that within a few miles of their own offices were three pieces of real estate that no one could deny were Iranian: the Embassy Chancery of Iran, the residence of the minister of cultural affairs of the embassy of Iran, and the residency of the military attaché of the embassy of Iran. All three had been seized by the State Department on April 7, 1980. Embassy properties are under the protection of the Vienna Convention and are expressly immune from being used to settle claims. Yet, Perles had a hypothesis. The U.S. government had put them on the commercial real estate market, renting them out for money; maybe the government had inadvertently changed the status of the property from diplomatic to commercial. “It was the only thing we could chase,” said Perles.
Flatow’s legal team filed a writ of attachment—a court order to seize an asset—for the properties on July 8, 1998. The next day, at a hearing in Judge Lamberth’s courtroom, they were astounded to see over a dozen government lawyers. The government wanted Lamberth to deny the writ. “It wasn’t ours to give away,” explained Philip Bartz, then a deputy assistant attorney general at the Justice Department who worked on the Flatow case. “We were obligated to make sure it was not attached and sold to satisfy a judgment. If we start allowing people to seize assets to pay judgments, then all our embassies are at risk.”
Perles watched as Flatow’s head sank. He had brought the Iranians to court with the belief that he had the powerful will of President Clinton behind him. Instead it seemed he had now gained a formidable foe, one who was prepared to fight him with all the resources available to his administration.
The government’s lawyers emphasized that the United States was not filing its argument on behalf of Iran, but to Flatow and his allies the U.S. government seemed to be defending the property of a state sponsor of terrorism.
In Congress, condemnation of the administration’s actions was swift. A week after the Department of Justice lawyers appeared in Lamberth’s courtroom, the House was debating an appropriations bill, and late on the evening of July 16, New Jersey congressman Saxton sought to attach an amendment to it that would allow diplomatic properties to be used by plaintiffs seeking their judgments. New York representative Eliot Engel spoke in support of the measure and criticized the president for protecting Iranian property. “They always say it somehow undermines the ability to have the president do this or that,” he said. “We are the United States Congress, and we make policy. We decide what is right.”
Saxton also spoke. “Terrorists operate around this world, and there is seldom a price to pay,” he said. “This is a tool for us to use as a civilized society.” The amendment stalled, and a few months later Lautenberg sponsored a similar one, attached to the 1999 Appropriations Act. When it passed, President Clinton used an executive waiver to strike it, in the “interest of national security.”
Flatow saw Clinton’s decision as an act of hypocrisy. He told the Associated Press, “Protecting Iranian assets of any type is equivalent to the FBI director saying he’s tough on gangsters but needs to be sensitive to the Mob.”
The battle lines between Flatow and his legal team, largely backed by Congress, and an army of administration lawyers had been drawn. At subsequent hearings, Perles and Fay argued that the government was using an abstract interpretation of its obligations under international law. The government’s lawyers responded that seizing diplomatic properties would adversely affect the foreign-policy interests of the United States. Should another hostage situation take place, for instance, the United States would need all the frozen assets it could access. If the Flatows had hypothetically been able to settle their judgment before 1979, deputy treasury secretary Stuart Eizenstat argued, the government might not have had the money and leverage to get the hostages out during the Tehran crisis. This was not an abstract argument for Eizenstat: He had been President Carter’s chief domestic policy adviser during the Iran hostage crisis.
Perles’s own wife was an employee of the State Department, and he understood the government’s interest in retaining as many bargaining chips as it could—including frozen assets—in its dealings with Iran. But he still didn’t agree with the strategy. “I never liked the idea of saying we’ll give you this money for our diplomats,” Perles said.
Flatow was becoming a thorn in the Clinton administration’s side. “They hated him,” said Patrick Clawson, the Iran expert who testified on Flatow’s behalf. “The U.S. government did its best to discourage and thwart the collection efforts—they didn’t care about judgments, but the collection efforts they hated.”
President Clinton was increasingly under attack in the press for his actions. On October 4, 60 Minutes aired a 13-minute segment detailing Flatow’s efforts that included searing video footage from the Kfar Darom bomb site and of an injured Alisa being carried off the bus. Lesley Stahl asked State Department spokesman Jamie Rubin whether the U.S. government was protecting Iranian assets because it wanted a thaw in relations with the country. “Nothing could be further from the truth,” said Rubin. “This has nothing to do with our Iran policy and everything to do with the fact that diplomatic property is sacrosanct.”
But this argument looked technical and heartless in light of a father’s emotional pleas. The segment elicited an outpouring of sympathy for Flatow, and the administration was publicly pummeled. Conservative columnist Tony Snow wrote, “Families and victims soldier on, determined to get their due—even if it means taking on a U.S. government that sits on the side of the courtroom, making cause with Fidel Castro, Moammar Khadafy and Saddam Hussein.”
One day, Perles came home to his wife, who joked: “The Ayatollah and Madeleine Albright are getting together to draw straws to see who will get rid of you first.”
After eight months of exchanging motions and briefs, the Clinton administration extended Flatow an olive branch. On November 2, 1998, Perles, Flatow, and Fay attended a meeting at the Department of State building hosted by deputy secretary of the treasury Stuart Eizenstat. The room was crowded with Eizenstat’s staff, as well as emissaries of Frank Lautenberg, the Department of Justice, the Department of the Treasury’s Office of Foreign Assets Control, and the Office of Foreign Missions.
Eizenstat handed over more than 5,000 pages of documents and suggested that if they wanted to locate assets beyond the custodial control of the federal government, they should look no further than 650 Fifth Ave. in New York City. The 34-story building was owned by the Alavi Foundation, a nonprofit dedicated to promoting Persian culture and scholarship. In fact, Eizenstat told them, the organization was controlled by the Iranian government.
As startling as this claim appeared, the Alavi Foundation’s dubious facade as a nonprofit was an open secret. The Shah created the organization under the name the Pahlavi Foundation in 1973 and built the skyscraper at Fifth Avenue in 1978, the year before he was overthrown in the revolution. In 1995, The American Spectator published an exposé by reporter Kenneth Timmerman that detailed how Ayatollah Khomeini had forced the board of directors (including former secretary of state William Rogers) to resign, replacing them with sympathizers to the new Islamic Republic.
According to Timmerman’s investigation, the foundation began building Islamic centers in Maryland and New York with scholarship programs and adult-education courses that had a pro-Khomeini agenda. He unearthed tax records that showed that the Alavi Foundation had paid more than $1.4 million to a mosque in Brooklyn where the bombing of the 1993 World Trade Center had been planned and discovered that several of Alavi’s employees had been caught trying to buy or export to Iran IBM computers, lie-detector machines, and biological agents.
The Internal Revenue Service had also been looking at the Alavi Foundation ever since it tried to deduct from its taxes a loan it received from a bank affiliated with the Iranian government. In 1997, however, the IRS deemed the organization to be legitimate and gave it a refund, even though Bank Sepah, one of the Iranian banks blacklisted by the Treasury Department, still operated out of 650 Fifth Ave.
Perles and Fay decided to go after three of the Alavi’s properties in Maryland, all Islamic schools in Montgomery County. Just a few days after their meeting with Eizenstat, a sheriff delivered a levy to the properties, and on May 10, 1999, the two sides met in U.S. District Court for the District of Maryland.
In their opening argument, the Alavi’s lawyers called the case a witch hunt and compared their client to the Rockefeller Foundation. If the IRS really believed Alavi was a fraudulent organization, as described in the suit, argued attorney John Winter, it wouldn’t have been granted a substantial IRS refund.
Fay argued that there were FBI videotapes showing the Imam of the Islamic Educational Center in Maryland meeting with Ayatollah Khomeini and the heads of Hezbollah and Hamas, as well as the PIJ’s Fathi Shaqaqi before he was murdered in Malta.
But at the end of oral arguments, Judge Alexander Williams Jr. turned to Perles.
“Why is our government recognizing it as a legitimate business or entity?” asked Williams. “Why don’t they forfeit it and seize the assets?”
Perles responded that the FBI was investigating a “circle of conspirators” that included the leadership of the Alavi Foundation.
“That’s speculative,” said Judge Williams. “Any of us can be investigated.”
Perles left the courtroom aggravated. “I followed that path because they gave me a box of documents about the Alavi Foundation,” he said
Shortly after, Perles and Fay sent a request to the Justice Department: Would the government support their arguments about Alavi in court? They never got a response.
Flatow saw the silence as a double-cross: They had been led to the Alavi Foundation by the government, who then refused to go the next step and give them proof that would win the case. The proceedings revealed how cautiously the administration was protecting its relations with Iran.
Indeed, there were serious concerns inside the National Security Council. The suit could force the State Department into the awkward position of stating whether or not it considered Alavi an instrumentality, or front, for Iranian financial and political activity in the U.S. “There are a number of difficult issues to address,” said an NSC internal memo. “Anticipating further inquiries and possibly a formal request, NSC will convene interagency counsel to explore the matter.”
It came as little surprise when, on September 7, 1999, the judge released the Alavi Foundation’s Maryland schools from the levy and granted a motion to keep Perles and Fay from trying to go after any of its other properties.
As frustrating as the defeat in Maryland was, Perles and Fay were beginning to realize that losing in court wasn’t such a bad thing. Every day, they spoke on the phone several times, urging each other on in the face of setbacks. “Sometimes the way to win, to move a case forward, is to lose,” Perles told me. “If you lose often enough, you can sometimes make things happen. I kept attacking Iranian assets and losing and complaining to Congress every time the Clinton administration intervened. The more we lost, the better we kept doing politically.”
Indeed, the political pressure and public scrutiny was needling the Clinton administration as Perles and Fay continued to file motion after motion in Judge Lamberth’s court. “It’s a very difficult policy issue,” said Stuart Eizenstat. “We understood—a family experiences a grievous loss, and they needed to take what steps they could. But we had to put it into a broader policy perspective. We couldn’t look only at the suffering of this one family.”
On July 30, 1999, Perles, Fay, Lautenberg’s staff, Eizenstat, and seven other administration officials met again. Eizenstat repeated his offer to help identify unblocked assets, saying he wanted to avoid confrontation and work together constructively.
Frustrated by their experience going after Alavi, Perles and Fay asked for an “interim measure of closure” for Flatow, suggesting that the rental proceeds, some $5–6 million from Iranian diplomatic properties, would be a good start. “We, too, want to avoid confrontation—but we need results,” Fay argued. “We want the discussion to go beyond unblocked property.”
The elephant in the room was another proposed congressional amendment: Senators Jon Kyl of Arizona, Connie Mack of Florida, and Lautenberg had put together the Justice for Victims of Terrorism Act, which would provide access to blocked assets. Administration officials were hoping the amendment would be dropped or at least postponed to prevent the president from exercising a veto.
Toward the end of the two-hour meeting, Perles finally lost his patience. “I have heard nothing from you today that is real. The only reason you are meeting with us today is because there’s a crisis for you,” he told them. “You’re here because you can count votes. I can count votes, too.… Think long and hard about the rental proceeds.”
With no indication that the administration was going to release the rental proceeds to Flatow, in the fall of 1999, Kyl, Mack, and Lautenberg went forward with the amendment. “Initially, the Clinton administration’s response to this was more from a legalistic, international-relations perspective,” Mack told me. “Eventually, as this thing heated up, the political instincts started to move, and they had to figure how to do it in a way that did the least damage to their position.”
According to internal memos, that September the Clinton administration began considering the possibility that they needed to make what they called an “advance payment” to Flatow to deter the new amendment—some 5 percent of the compensatory damages awarded by Judge Lamberth.
But by October, the two sides were still at a standstill, and Flatow appeared before the Senate’s Committee on the Judiciary to endorse the amendment. “If the administration will not help us, then at least let it get out of our way,” he pleaded. “Stop sending lawyers to court at taxpayer expense to defend the interests of terrorists.”
Eizenstat had also testified, arguing that the United States was at risk of losing its leverage against foreign states. And, he added, even if Flatow was legally allowed to claim blocked assets to satisfy his judgment, “the value of the judgment won by the Flatow family … exceeds the total known value of the blocked assets of the government of Iran in the United States. ”
An hour after Eizenstat testified, the phone rang at Thomas Fay’s office. The caller identified himself as a retired employee of the Department of Defense but didn’t give his name. His job at the department had involved something called the Foreign Military Sales Program. FMS was a program that allowed the U.S. to sell weapons to foreign governments; it was an oft-used tool of American foreign policy. At the time of the Shah’s fall in 1979, he told Fay, Iran’s FMS account with the U.S. government had hundreds of millions in its coffers, which had been seized.
Fay hung up the phone and started calling contacts on Capitol Hill to find out if what he heard was true. Within hours he had confirmed it.
Of all the countries with FMS accounts in the U.S., Iran had one of the largest; it had spent some $20 billion on American-made weapons systems over the decades. But the existence of any money left in the account since the revolution had never been disclosed to Flatow by the administration. In fact, it contained some $400 million.
Unbeknownst to Flatow and his lawyers, the administration had worried that Iran’s FMS account might come up in the litigation. In the summer of 1999, the president’s National Security Council adviser, Sandy Berger, sent the president a memo—now public in the Clinton Presidential Library archives—warning that yet another amendment was being proposed in Congress that would give plaintiffs access to blocked assets. If it passed, Clinton might be forced to use his veto power or risk giving Flatow the ability to tap “the $400 million of Iranian funds that we are holding in the FMS Trust Fund” and jeopardize “one of the primary policy tools at our disposal.”
At the bottom of Berger’s memo was a handwritten note: “We need to make a deal and get some $ to the Flatows—the trick is to give reasonable reimbursement w/out letting these claims eviscerate foreign policy. We’ve been so stuck on the ‘camel’s nose in the tent’ problem that we haven’t done enough to resolve the hot cases.” It was initialed “BC,” a sign that the president’s priorities were beginning to shift.
By the end of 1999, there were other compelling reasons that the Clinton administration wanted Flatow’s crusade to end: First Lady Hillary Clinton was beginning her campaign for senator of New York, and she needed allies on the Hill and the support of the Jewish vote.
The First Lady was already facing tough criticism from Jewish organizations stemming from her visit to Ramallah in the fall of 1999. In November, she had appeared at a public event with Suha Arafat, the wife of the Palestinian leader, where Mrs. Arafat accused Israel of poisoning Palestinian children with toxic gas. Clinton looked uncomfortable but didn’t dispute the accusation, and as she left the event, Clinton gave Mrs. Arafat a kiss. She later said that the translation she heard of Mrs. Arafat’s words were less severe and that a kiss in the Middle East is like a handshake. But her problems with Jewish voters—who generally make up 12 percent of the vote in New York State—were serious.
The First Lady began visiting Jewish centers around the state. On December 14, 1999, she spoke at the Orthodox Union in lower Manhattan. The event was closed to the press and attended by 100 Orthodox leaders and community members. Clinton was asked to explain a range of policy positions, including the status of Jerusalem and foreign aid to Palestine.
Flatow was in the audience, invited by the Union’s chairman to ask his own question.
“Do you support the administration’s handling of terrorist victims’ claims against the Islamic Republic of Iran?” said Flatow.
“No, I do not,” said Clinton.
The room went silent. It was a clear repudiation of her husband’s position. “Very simply, that became an entre to the White House to sit down and talk settlement. Not just with us but with other terror victims,” he said.
The White House’s ambitions for a breakthrough in Iran relations were largely dashed by the last year of Clinton’s presidency. It no longer seemed possible that he would be able to establish direct dialogue with Khatami, who was hemmed in by Iran’s internal politics and the Ayatollah’s refusal to engage with America.
Furthermore, he was no longer faced with just the Flatow case. In the year following the Flatow v. The Islamic Republic of Iran decision, courts had awarded a tsunami of judgments for terror victims. In March, Lebanon hostage Terry Anderson was awarded $324 million. In July, the families of two young Americans killed in a bus bombing in February 1996 were awarded $327 million. The family of a marine killed by Hezbollah was awarded $355 million. The families of the Brothers to the Rescue incident—unarmed planes shot down by the Cuban government in 1996—were still trying to collect the $187 million awarded to them.
After the meeting at Orthodox Union, one of the First Lady’s close advisers, Jack Lew, then director of the Office of Management and Budget, was put in charge of negotiations with Flatow and other families, as well as senators Lautenberg and Mack. Lew, also an Orthodox Jew and a Queens native, presented Flatow with a compromise. Would Flatow accept a payment of the compensatory damages from the United States judgment fund, typically used to settle lawsuits against the United States? Flatow declined. He didn’t want to accept taxpayer money—he wanted Iran’s money.
“I think that really got Hillary’s attention. Here’s this guy, he’s principled,” said Perles. After that, Lew called Flatow and told him he was going to get the problem solved.
Garry Shiffman, national security adviser to Senator Mack, helped oversee the negotiations between the administration, victims’ families, and senators over the ensuing months. The goal was to create legislation that authorized the secretary of the treasury to use some frozen assets to pay compensatory damages to the families.
The final agreement gave the plaintiffs two options. In the first, they could obtain 110 percent of compensatory damages plus interest but relinquish the right to try and collect any other damages, whether in U.S. or foreign courts. In the second, they could receive 100 percent of compensatory damages plus interest and only relinquish their rights to pursue damages in U.S. courts. They could also decline any payments from the government and continue trying to satisfy their judgments through the courts. Flatow chose the second option, retaining his right to go after Iranian assets abroad.
On May 9, 2000, the agreement passed in the House as part of the Victims of Trafficking and Violence Protection Act. The Senate passed the act in July. Shiffman remembers convening a meeting with the Flatows and other families in the Senate offices during the vote. “There was this tremendous sense of inevitability that we were going to get this done,” he said.
On October 28, 2000, President Clinton signed it into law, thereby ensuring that some $213 million plus interest would be given over to eight families, including the Flatows. Clinton issued a statement saying that he was “pleased that the Congress and the executive branch have been able to reach agreement on legislation that reflects our shared goals, providing compensation for the victims of international terrorism and protecting the President’s ability to act on behalf of the Nation on important foreign policy and national security issues.”
It had been 962 days since Flatow had won his case against the Republic of Iran. As the political scientist Ofira Seliktar has written, the passage of the bill was viewed by Iran as confirmation that the U.S.’s attempts at detente had been a trick all along. “To the insular regime in Tehran, already convinced of Jewish dominance … the so-called Flatow bill was one more indication of Jewish power.”
In the years that followed, the Flatows’ lawsuit would ripple out in unexpected ways—including, over a decade later, unraveling a bank’s Iranian money-laundering scheme. In 2006, Eitan Arusy, an intelligence analyst at the district attorney’s office in Manhattan, who specialized in illegal Middle Eastern financing, began looking into the 1999 Alavi case that Perles and Fay had lost. Arusy’s interest was more than professional. He was a former Israeli soldier, and in his early twenties he had been one of the first responders to the bus bombing in Kfar Darom that killed Alisa.
As a result of Arusy’s digging, the prosecutor’s office investigated the Alavi Foundation further. An informant suggested that they focus on the financial records of the organization, which would show that the nonprofit had received millions of dollars from the Iranian-owned Bank Melli. When they began looking for Bank Melli, they discovered a surprise: money transfers with Credit Suisse and Lloyds, which, it turned out, had removed their names to avoid detection.
The Manhattan prosecutors began collaborating with the Justice Department, the U.S. Attorney’s Office, the Treasury Department, New York State’s financial regulator, and the Federal Reserve. Together, they argued, international financial companies including ING, Standard Chartered, HSBC, and BNP Paribas had laundered money on Iran’s behalf, as well as Sudan’s and Cuba’s. When Flatow found out that his case had helped lead to some $12 billion in settlements between the banks and the U.S. government, including $8.9 billion from BNP Paribas alone, it “knocked my socks off,” he said.
It was the latest chapter in a story that Flatow and his legal team had tried to tell years before: that the Alavi Foundation was a front for the Iranian government. On April 17, 2014, Preet Bharara, the Manhattan U.S. Attorney, announced that the skyscraper at 650 Fifth Ave., in addition to properties in California, Virginia, Texas, and Maryland, would be sold with the intention of benefiting terrorism victims, among others. Some $2.8 billion of the BNP Paribas fine will aid 9/11 victims. The Alavi Foundation and the Iranian government continue to dispute that they are connected, calling the seizure “unwise and politically tainted.”
In December 2015, Congress finally passed a spending bill that included provisions for the hostages taken at the U.S. embassy in 1979 to receive millions in restitution, ending a 30-year legal battle. The money will come from the penalty paid by BNP Paribas.
Flatow’s agreement with the government prevents him from filing a claim to any of this money. But Perles continues to track down Iranian money in other countries. A few years ago, in Italy, his firm reached a settlement with Iran mediated by an Arab diplomat: Iran would pay a lump sum by wire transfer, and his clients, including Flatow, would drop all further suits. When the time came, Iran’s representatives never showed up, and the transfers weren’t made.
Most recently, Perles argued before Italy’s Supreme Court to adopt Judge Lamberth’s decision in the Flatow case, so he could begin going after Iranian assets there. (Italy is one of Iran’s biggest trading partners.) The court declined.
Perles’s practice is dominated by cases of victims seeking damages from foreign governments and corporations that materially support terrorists. He is representing the family of Steven Sotloff, the American journalist murdered by ISIS in 2014. In total, his clients have been awarded more than $17 billion in damages in connection with attacks against Americans.
Last January, negotiators reached a historic deal with Iran. The agreement, called the Joint Comprehensive Plan of Action, or JCPOA, created a pathway to end decades of sanctions in exchange for Tehran dismantling its military nuclear program. Several months later, a bill in Congress sought to block the JCPOA until Iran satisfies judgments won by terrorism victims. The president threatened to veto the measure. “Obstructing implementation of the JCPOA would greatly undermine our national security interests,” said a White House statement, in language that echoed Clinton’s and Albright’s in the 1990s.
And just last week, on January 13, the Supreme Court heard arguments in Bank Markazi v. Peterson, a case that bears a striking resemblance to Flatow’s. A group of some 1,300 families are seeking to recover damages on behalf of loved ones killed in terror attacks sponsored by Iran, including the bombing of the Beirut Marine barracks in 1983. In 2013, Congress required a federal court to allow frozen assets of the Iranian bank to be used to compensate victims’ families. Now the court has to decide whether Congress acted unconstitutionally and challenged the separation of powers at the heart of American governance.
Remarkably, analysts believe that Flatow’s effort may have actually succeeded in its goal of making killing Americans so expensive that Iran would avoid doing so.
“What we’ve seen from this quixotic effort that Flatow had so many years ago is a very substantial penalty that the Iranian government has had to pay,” said Patrick Clawson. “There has been real change in behavior.” He points out the fact that Iranian-sponsored terrorist groups once commonly seized American citizens as hostages, a practice that dramatically declined after the Flatow case.
This isn’t to say that Iran hasn’t found other ways to pursue its interests, supporting everything from Syrian president Bashar al-Assad’s regime to Lebanon’s Hezbollah. It hardly needs to be said that terrorism itself has not gone away but merely emerged in more places with old and new actors and a seemingly always-fresh stream of money as the Middle East is engulfed in the fight against ISIS and sectarian conflict. In 2015, the State Department reported that global terror attacks grew by 35 percent between 2013 and 2014, and deaths increased 80 percent. Last week, the JCPOA was implemented, giving Iran access to $100 billion in previously frozen assets; Perles predicts that some of this money will be directed toward financing terrorist attacks by Iran’s proxies.
For Gary Shiffman, now a professor at Georgetown University in economics and security policy, the next stage for these cases is the international legal system. “If there’s a way for American citizens to go to international court and obtain a judgment for an act of terrorism, they should be able to do that,” he said. “If the price goes up, the demand goes down.”
The Flatows settled with the government for over $26 million, paid out of appropriated funds from the U.S. Treasury. According to the agreement, however, the funds will be deducted from Iran’s frozen FMS account in the future. (Perles’s and Fay’s fee was about a third of the amount.)
The Flatows created a scholarship fund in Alisa’s name to send college students to study in Israel each year. The fund is just one aspect of Alisa’s ongoing legacy, going back to the moment she was taken off life support and her organs were given to Israeli patients. Although three recipients died following surgery, three others survived, including a man who had waited for a new heart for more than a year.
Today, the Flatow family includes 16 grandchildren, with four granddaughters bearing the name Alisa.
Flatow hasn’t stopped talking; he travels to high schools and synagogues, gives interviews to the media, and writes letters to editors. “It’s good therapy for me,” he said.
He and Rosalyn are considering a move this spring, and as a result Flatow recently sorted through old boxes, including some of Alisa’s belongings. As he sifted through college textbooks from Brandeis, toys, and birthday cards, he marveled at the passage of time. “Twenty years ago, I would have fallen apart,” said Flatow. “Now I just look and shake my head in wonderment.”
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