Iranian Terrorism on Trial Again

On its face, a historically significant case that was argued before the U.S. Supreme Court last week concerns Iran’s support of terrorism. But, although its official name is Markazi v. Peterson, considering the legal issue at its core, it might as well be called Obama and Congress v. the United States judiciary.

“Markazi” is Bank Markazi, Iran’s central financial institution, which has almost $2 billion stored in Citibank accounts in New York. U.S. courts had found the Iranian government culpable for 19 terrorist attacks on American citizens — “Peterson” is Deborah Peterson, whose brother, Lance Cpl. James Knipple, was killed in the 1983 bombing of the U.S. Marine command center in Beirut, Lebanon. Iran, unsurprisingly, refused to accept the verdict and honor the judgment.

In 2008, however, Bank Markazi’s holdings were discovered. In 2012, President Obama issued an executive order freezing the funds, and Congress passed the “Iran Threat Reduction and Syria Human Rights Act,” which included a provision making it easier for the victims to get to the blocked funds.

There are over 1,300 Americans who have been awarded damages, including survivors of the Iranian-linked attacks and relatives of murdered victims — including Shoshana Yehudit Greenbaum, Hy”d, an expectant New Jersey woman who was killed in the suicide bombing of a Sbarro pizzeria in Yerushalayim in 2001.

The Iranian Bank has asserted that the 2012 legislation, signed into law by President Obama that same year, violated the Constitution’s separation of the legislative and judicial branches of government, because it targeted a specific case — the victims’ lawsuit, which the law explicitly referenced — to yield a specific legal outcome, namely the ability of the plaintiffs to collect the damages awarded them. In other words, the bank claims that Congress and the president, by enacting the 2012 law, stepped on the judiciary’s toes.

A federal district court and an appellate court rejected that argument, ruling against Bank Markazi and for the families of the victims. And so the bank has now brought the case to the nation’s highest court.

During last week’s arguments, Justice Antonin Scalia told the defendant’s lawyer, Jeffrey Lamken, that Congress is not restricted from enacting a law as a result of a particular legal case. “It acts all the time,” he said, “on individual matters.”

And Justice Stephen Breyer wryly noted that the “single defendant” Mr. Lamken contended was the beneficiary of the judgment against the Iranian bank, in fact “represents 100 million people.”

Chief Justice John Roberts, however, seemed wary of congressional or presidential powers encroaching on courts, noting with disapproval that “there are places in the world where courts function just the way our courts do — except every now and then when there’s a case the strongman who runs the country is interested in … and he picks up the phone and he tells the court, ‘you decide this case this way.’”

But the lawyer for the victims, Theodore Olson, a former top official in the Bush Justice Department, explained that the lower courts had found Iran liable for damages for its role in the attacks; the Congressional legislation related only to executing those judgements.

Justice Samuel Alito also challenged the bank’s lawyer, asking him “You think the issue here is the protection of the judiciary, rather than providing a certain element of equal treatment for the people who are the litigants in the case?” and then informing him that “I would think it would be the opposite.”

Complicating the case is the fact it has come before the High Court at a sensitive time in U.S.-Iranian relations.

The arguments took place less than a day after Tehran detained, and then released, 10 U.S. Navy sailors who had drifted into Iranian territorial waters. And days later, Tehran and Washington swapped long-held prisoners, and the United States and European nations lifted oil and financial sanctions on Iran after international inspectors concluded the country had followed through on its promises to dismantle crucial sections of its nuclear program.

No one expects the justices of the Supreme Court to be openly swayed in their deliberations by the hope that the recent events may evolve into the opening of formal, even friendly, relations between our country and the mullahcracy of Iran. But human judges are, in the end, human, and can be subtly influenced by factors that should not, by right, figure into their judgments.

Whatever the future may hold for U.S.-Iran relations, the past is not past. Markazi v. Peterson deserves the same verdict as the lower courts previously rendered when Iran’s bank tried to avoid making restitution for its murderous acts.