The judicial way
Do as Americans do: fight for your rights in court
By Abolala Soudavar
February 8, 2001
The Iranian
Over the past few weeks, I've watched the polemical war waged in your
newsletter upon Mr. Mirfederenski's article ["Power
of one"] about the mistreatment of Iranians in the United States,
and wandered why so much penmanship and passion was not channeled into
a more effective avenue.
In America one should do as the Americans do: one should fight for one's
rights in court. Minorities and foreigners however, are generally reluctant
to do so. They are unaccustomed to legal proceedings and find it difficult
to challenge authority in a way that their cultural heritage ill-prepared
them for.
But it need not be so for Iranians. For the same two concepts that prompted
the development of the judiciary process in the West, namely property rights
and the respect for contractual agreements, are very much engrained in
Iranian culture and history.
Indeed, back in pre-Islamic times, property rights constituted a major
preoccupation of Sasanian Iran, and marital unions were frequently formed
to preserve such rights. A continuation of that phenomenon can still be
detected in the habits of Iranian Zoroastrians who cherish landholding
and protect it very much through family intermarriage.
As for the second concept, one should remember that before Zoroaster's
reforms of the 7th-6th century B.C. that elevated Ahura Mazda to the status
of supreme god, the most prominent deity of the Iranian pantheon was Mithra
whose main attribute was that of "the protector of contracts and covenants."
Like many deeply rooted cultural traits, the respect for contractual
agreement between individuals remained strong in Iranian cultural ethos,
and allowed the flourishing of Iranian traders and merchants along the
Silk Road.
In the same vein, handshake agreement are the basis for many bazaari
transactions today, as well as transactions for properties such as cars
and homes that frequently change hand amongst ordinary people without new
registration or an apparent need for the issuance of a new deed.
It should then be of no surprise that the primary objective of the 1905
Constitutional Revolution of Iran was the establishment of an `Edâlatkhâné
or House of Justice, and that the secular constitution that got promulgated,
was most impressive for a country whose jurisprudence had been dominated
for centuries by the Islamic sharia. The growth of the judiciary branch
of government was quite spectacular thereafter, producing along the road,
high caliber lawyers and jurists worthy of the best of western traditions.
Reza Shah's establishment of the Tehran University and its faculty of
law much contributed to the strengthening of the judiciary, for although
he was semi-illiterate and autocratic, he had a deep respect for basic
institutions. Same is not true for his son Mohammad Reza Shah, who strove
to dismantle or weaken whatever institution his father had initiated or
strengthened.
The institution that suffered most under the latter's reign was the
judiciary, especially after the 1953 CIA-organized coup and the ever-increasing
interference of the Savak in every realm of government. On the eve of the
Islamic Revolution of 1979, there was no independent or functioning judiciary
left but a void into which quickly moved the Islamic Revolutionary judges
whose extravagant judgments nowadays are neither based on secular law nor
Islamic law but on pure self-interest.
Having lost without a fight the `Edâlatkhâné that
they had previously fought for, the people of Iran now want it back and
overwhelmingly expressed it in the election of President Khatami who promised
justice but couldn't deliver. As always, they thought that the election
of one man could solve the problems of Iran and turn it into a democratic
country.
But democracy is never achieved through free elections alone. Hitler
after all came to power through popular vote, and it is my belief that
today, after 20 years of tyranny and economical mismanagement by the clerical
regime of Iran, in a hypothetical free electoral race that would pit Ayatollah
Khomeini, Mohammad-Reza Shah and Dr. Mossadegh against each other, Khomeini
would still win on sheer charisma.
The enemy of democracy is the charismatic leader and its guarantor is
the judiciary system. Without a strong judiciary system that people respect
and obey there will be neither freedom nor democracy.
While our compatriots back home are longing for justice, U.S.-based
Iranians live under the umbrella of perhaps the most sophisticated judiciary
system in the world. We can -- and must -- use this system to assert our
rights as residents, and at the same time, bear pressure on the Iranian
government for its wrongdoings. If we do it the American way, that is relentlessly
and by initiating multiple lawsuits here, and at the same time encourage
others to do so in their own countries of residence, we may be able to
influence the direction of internal Iranian politics.
As a true believer in what I preach, I have initiated two series of
lawsuits, a pair against Iran and a pair against the U.S. Success in these
lawsuits are not guaranteed; far from it. But at the very least they show
that in the free world and in an advanced society, government officials
including the president of the United States, are not beyond reach and
that even we as foreigners have a right to challenge their policies, and
that Iran's lawless acts can be contested in this new globalized world.
Should any of these challenges be successful, its effect back home will
be doubly strong.
These two series of lawsuits come in the wake of a first unsuccessful
attempt to sue Iran as an Iranian in a U.S. court. In that suit, jurisdiction
was first denied by the Federal District Court of Houston but was vacated
upon appeal to the 5th Circuit. The latter found nonetheless other grounds
one of them through bogus translation- to deny jurisdiction. A petition
to the Supreme Court was rejected since the Court only takes an average
of 70 cases out of 7,000 petitions per year, and its main criteria is not
one of redressing lower courts errors but to pick a subject of importance
for the American people.
A lawsuit between an Iranian and Iran obviously doesn't fit that criteria.
But optimist as I am, I took comfort in the lengthy delay to announce the
rejection of that case. Because, under Chief Justice Rehnquist, the court
manages its case load at a very quick pace, and a delay usually indicates
interest from a few justices, though not enough to muster four votes to
allow review by the full court (in the meantime, the 5th Circuit's decision
has been ill-received by university scholars).
Throughout the process, the advice that I received -- friendly as well
professional -- was almost without exception negative and discouraging.
But not being a lawyer has its advantages as well. One can look at the
situation afresh and not be impressed by past cases.
My first attempt, even though unsuccessful, reinforced my conviction
in Iranian's jurisdictional rights in the U.S., and also taught me an important
lesson that unlike lawyers who generally hold back on arguments when filing
a case, one should address upfront every imaginable objection that the
defendants and the judge might come up with. For the main battle in these
cases is not the trial itself but the pre-trial fight for jurisdiction
and non-dismissal. As I explained, it can quickly turn into a two strikes-and-out
game with two successive negative decisions by the District Court and the
Court of Appeals.
For cases against Iran, the main hurdle nowadays is the 1976 Foreign
Sovereign Immunity Act (FSIA), which grants immunity from suit to foreign
governments. There are however two main exceptions. The first is in relation
to commercial activities. The FSIA emphasizes that if the "nature"
of an act is commercial regardless of its announced "purpose"
(which may pretend to be sovereign and for the public good) it should be
accepted as such. As the Islamic Republic of Iran is primarily about money
and not Islam, unlawful government acts are invariably commercial in nature.
The second exception to the FSIA is based on existing treaties. The
1955 Treaty of Amity between the U.S. and Iran is not only much alive but
also provides Iranians with a very strong jurisdictional basis. For instance,
Articles III and IV of the treaty should provide jurisdiction for Iranians
whose properties have been confiscated by the Islamic Revolutionary courts.
The problem though is a loosely worded sentence in the Supreme Court's
landmark decision Republic of Argentina v. Amerada Hess, which has been
misinterpreted in subsequent decisions by lower courts, and that must now
be reversed or circumvented.
The same Treaty of Amity also provides a strong legal basis for lawsuits
against abusive US policies towards Iranians. The onerous search-procedures
of the FAA concerning Iranians are not only against the 14th Amendment
but also in contravention of the Treaty of Amity. Cases against security
procedures are usually hard to fight and a few previous lawsuits brought
by Arabs and Middle-Easterners have not been successful. There are two
major differences however between our case and the previous ones.
The first is the already mentioned Treaty of Amity, and the second is
a blunder committed by the FAA. As a façade, and as both airline
and FAA officers will explain to you, the selection of passengers for security
check must be computer generated and/or decided case by case. But for Iranians,
the mere showing of the passport triggers the search. Which means that
Iranians have been designated as a "suspect class" and not individual
suspects. And that is illegal.
Similarly, the sanctions imposed on Iran contravene the Treaty of Amity.
And since I believe they are against the interest of the people of Iran
and play into the hands of Iranian government officials, I've challenged
the legality of the sanctions in a suit brought against the United States'
President.
Finally, in 1996, Congress added another exception to the FSIA (generally
referred to as the Flatow Amendment) to allow litigation against states
that sponsor terrorism. In reality, this amendment was specifically tailored
to fit Iran, provided the victim or the claimant was an American national.
Many Americans have sued Iran on this basis and have been awarded huge
compensations and punitive damages, a portion of which they are now able
to collect.
What is interesting though is the fact that Iran chose not to defend
itself in these cases even though the skimpy evidence presented was mostly
of a "hear-say" nature and inadmissible, and that most witnesses
were interested parties that could easily be barred from testimony.
By contrast, the government of Iran is fighting hard against every case
that I've filed and has hired a prominent Washington lawyer and law professor,
Bruno Ristau, who had successfully defended Argentine against Amerada Hess
at the Supreme Court. It provides perhaps further proof that the outcome
of these lawsuits is important to Iran and, that it may ultimately affect
its government's policies and behavior.
All documents pertaining to my lawsuits are now posted to my website:
www.soudavar.com.
