LAWFARE AGAINST IRAN

“YOU KNOW, I’m just a regular American mom. Sometimes, it’s hard to believe I’m suing Iran,” Lynn Smith Derbyshire laughs.

Speaking to The Jerusalem Report via Skype from her home just outside Washington, DC, about her efforts to force Iran to pay out $2.65 billion in damages to the families and survivors of the 1983 Beirut barracks bombing, Derbyshire’s infectious laugh suddenly stops.

“I’m not going to give up. Not ever. Not until I get justice for Vince,” she says quietly.

Vince was Derbyshire’s elder brother, Captain Vincent L. Smith, a US air liaison officer serving in Beirut. He was just 30 on October 23, 1983, when a Hezbollah suicide bomber drove an explosives-packed truck into his barracks, killing him and 240 other US peacekeeping troops. Derbyshire, who says Vince’s death devastated her closeknit military family, is the spokeswoman for Beirut Families, an unofficial group of family members of victims and survivors of the bombing.

While the world’s attention has been focused on issues like Iran’s nuclear program and its roles in Syria and Iraq, Derbyshire and a group of other ordinary American civilians are quietly fighting a significant offensive against the Islamic Republic.

Their battle is low-key. It does not involve diplomats or military personnel. Instead, it is fought by smartly dressed lawyers in orderly Washington courtrooms. Their lawsuit, known as “Peterson vs. The Islamic Republic of Iran” is a battle that has been waged slowly and painstakingly over years without dramatic spectacle. Yet, for both the Beirut Families and Iran, it is no less high stakes than if it were a military offensive on a traditional battlefield.

Iran did not respond to the original lawsuits establishing its involvement in the attack. However, when the Peterson plaintiffs started to sue to confiscate Tehran’s US assets – billions of dollars in US bank accounts and lucrative Manhattan properties – to pay the $2.65 billion default judgment against Iran, the Islamic Republic took notice.

Though Iran’s mullahs did not show up in court to fight the original lawsuits or respond when Judge Royce C. Lamberth of the District Court of Columbia ordered Tehran to pay the $2.65 billion in damages in 2007, Iran is now actively fighting back against the plaintiffs. The Central Bank of Iran (Bank Markazi) has hired a team of US lawyers to represent it in the fight to confiscate Iranian funds to pay off the Peterson and other judgments. Recently, they filed a petition to a Washington court demanding a rehearing of a ruling that allows $1.75 billion of Iranian funds held in a US bank account to be distributed to the plaintiffs.

The plaintiffs in the Peterson and other terror-funding lawsuits say the decision to fight Iran in the courtroom grew out of a sense of injustice in the wake of the 1983 bombing after the US government seemed powerless or unwilling to act.

Glenn Dolphin, an eyewitness to the Beirut Barracks bombing who did not join the lawsuits against Iran, tells The Report the US tried to forget the terror attack.

“It was as if they couldn’t put the incident behind them quickly enough. The murder of those marines was allowed to fall away and become a historical footnote,” he says.

The horrific memories of the events of that November day more than 30 years ago are still fresh for Dolphin.

At the time, he was a first lieutenant in the 24th US Marine Amphibious Unit Headquarters in Beirut. He recalls being awoken early that morning by a fellow marine who asked him to come lift weights in the nearby 1st Battalion 8th Marine barracks. Dolphin agreed and started to get up, but then decided to go back to sleep. That decision saved his life.

“I couldn’t have been asleep more than just a few minutes when I awoke to a metallic, crack sound that was quickly followed by an indescribable roar. The roar was the loudest sound I have ever heard in my life. It left my ears ringing for the rest of the day,” Dolphin relates.

IMMEDIATELY AFTER the blast, Dolphin remembers being struck in the back by a heavy steel door that had been blown outward through its frame. Glass rained down from a skylight above and chunks of concrete fell from the walls, he recalls.

“After that, the strangest thing happened.

There was the slightest pause and then objects that were flying away from us, suddenly turned and flew back toward us again. I suppose that this was because the blast was so powerful it created a vacuum with the air rushing backward in order to fill it,” Dolphin says.

In the seconds after the explosion, Dolphin thought the barracks had come under artillery fire. He was wrong.

He would soon learn that an Iranian man, Ismail Ascari, had driven a 19-ton yellow Mercedes truck packed with explosives through the wire barrier and sandbags surrounding the marine barracks. When Ascari reached the center of the barracks, he detonated the explosives.

The resulting explosion created a crater eight-feet deep that reduced the 1st Battalion 8th Marine barracks to a 15-foot pile of rubble.

Dolphin recalls being “awestruck” by the level of devastation.

“As I ran down the street, I realized that I should be seeing the BLT [marine barracks] building on my right, but I wasn’t. As I neared the foot of our street, I couldn’t help but to stop and look at the devastation. The four-story barracks HQ building was nothing more than just a smoking pile of concrete and steel,” Dolphin relates.

Dolphin describes how he and his fellow marines tried to dig out survivors and bodies from the rubble of the barracks with their bare hands.

“We worked for hours, dodging rifle fire, trying to free Staff Sergeant Don Hildreth. He was a communications chief assigned to the barracks and we had known him well. He was trapped in a void inside the rubble with his pelvis to his toes crushed under tons of concrete. Staff Sergeant Jim Aragon climbed down inside the void and sat there holding Hildreth’s hand for hours while we tried to free him with nothing but our bare hands,” Dolphin recalls.

Hildreth didn’t make it. He died before Dolphin and his colleagues could dig him out.

“Thirty years later, it still hurts to have failed to get him out of there,” admits Dolphin.

Beirut Families spokeswoman Derbyshire says that as the full horror of the terrorist attack emerged, many survivors and families of the victims “expected the US to do something.

We thought that there would be some sort of accountability,” she remembers.

When nothing happened, Derbyshire said she felt as if her brother and his fellow marines had died for no reason “Iran was literally getting away with murder,” she says. “I thought ‘Are we really just going to stand by?’ But as a civilian, what could we do?” Since the US would take no military response to Iran’s role in the barracks bombing, Derbyshire says the families of some of the survivors and victims decided to take an unprecedented step. They would sue Iran in civil court.

The decision to fight Iran in the courts has had several far-reaching outcomes, one of which has been new legislation allowing civil damages suits against terrorist states.

Thomas Fortune Fay, one of the Virginia- based attorneys representing the plaintiffs in the Peterson case, tells The Report that for 13 years after the Beirut attack there was no legal basis for US citizens to sue terrorist states.

However, in 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act, stripping sovereign immunity from terrorist states for certain legal actions. In a bold next step, Congress passed the socalled Flatow amendment, allowing civilians to file punitive damages against terrorist states.

The amendment is named for Alisa Michelle Flatow, a 20-year-old American student killed in a 1995 bus bombing near Kibbutz Kfar Darom in Gaza. Palestinian Islamic Jihad claimed responsibility, but it was Iran that funded the attack.

In 1997, Alisa’s father Stephen M. Flatow, whom Fay describes as “the hero in this story,” used the new legal provision to successfully sue Iran for $247.5 million.

Since then, Fay says, Congress has passed five additional changes to the statutes to help hundreds more civilians sue terrorist states for damages.

However, the fight against Iran is far from over. Though, like Flatow, the Peterson families won their suit, “Iran will never voluntarily pay,” Fay says.

As a result, the victims’ lawyers have sought Iranian assets in the US for confiscation against the judgments, a move that has finally elicited a response from Tehran.

“Iran’s litigation strategy as regards the state-sponsored terror lawsuits appears to be one of defaulting in liability cases and only coming out of the woodwork to defend aggressively efforts to enforce judgments,” Joseph Peter Drennan, a Virginia- based attorney who represents plaintiffs in several suits brought by victims of the Beirut-barracks bombing, tells The Report.

In July, the 2nd Circuit Court of Appeals in New York confirmed an earlier District Court ruling that $1.75 billion of Iranian funds held in a US Citibank account can be used to satisfy part of the $2.65 billion default judgment against Iran.

RECENTLY, BANK M arkazi’s l egal t eam filed a petition asking for the decision to be reheard by a full panel of judges, a move the plaintiffs say is a delaying tactic.

The Iranian funds were revealed in 2010, when the plaintiffs sued Bank Markazi and Citibank, as well as Clearstream SA, a Luxembourg- based unit of Deutsche Boerse AG, which was responsible for depositing Iranian funds into the Citibank account.

In July, a Washington court ruled that the Clearstream funds could be used to partially pay the $2.65 billion damages awarded in Peterson. The lawsuit also led to a US grand-jury probe into possible moneylaundering and other violations by Clearstream and Bank Markazi for the benefit of Iran, it was revealed in April.

In recent weeks, lawyers for Bank Markazi have filed a petition to the court asking for a full-panel judicial review of the July ruling on the Clearstream funds. Iran’s arguments, put forward by its US legal team, center on a 2012 legal provision passed by Congress, that strips Bank Markazi of immunity under the 1976 Foreign Sovereign Immunities Act. Part of the Iran Threat Reduction and Syria Human Rights Act, that law effectively opened the door for the Peterson plaintiffs to confiscate Iran’s Clearstream funds, which Bank Markazi had argued were off limits to the US.

Iran now argues that the 2012 law is a “grave intrusion into the judicial role” because it allows Congress to “direct particular outcomes in pending cases on whim.”

Bank Markazi’s lawyers also warn that the court’s reliance on the 2012 provision could lead to foreign nations targeting US interests. “It concerns not merely whether the US will be held to adhere to the unequivocal textual commitments of solemn, bilateral treaty obligations; it also has the potential to affect whether foreign nations view themselves as free to enact similar legislation, targeting US interests, despite such nondiscrimination pacts,” the petition reads.

Attorney Fay notes that while it would be “very unlikely” for the court to allow the rehearing, the move does delay payment of the Clearstream monies to the plaintiffs. If the court refuses a rehearing, Bank Markazi’s lawyers will have 90 days to apply to the Supreme Court for further review. Lawyers speculate that during the delay Tehran may attempt to convince the US government of its arguments.

“Does Iran believe that by delaying the payment to our clients it may be able to enlist the Obama Administration on their side? We simply do not know,” Fay says.

Iran is also appealing the confiscation of its valuable Manhattan property, the Piaget building at 650 5th Avenue, which was built in 1978 by the then-Shah, financed by $42 million from Iran’s Bank Melli. The building is currently majority-owned by Iran’s Alavi Foundation, a non-profit that promotes Islamic culture. It was seized in 2009 in connection with a number of lawsuits against Iran, brought by victims of the Beirut bombing and terror attacks in Israel.

If the plaintiffs win their battles and the Clearstream and 650 5th Avenue funds are distributed, it will be an extremely rare case of US victims of attacks on foreign soil winning financial relief through the court system.

Though the fight is far from over, Attorney Drennan expresses cautious optimism that the monies will be released to the plaintiffs in Peterson and other cases. “We are closer to the beginning of the end than the end of the beginning,” he asserts from his office in Virginia.

Though the legal battle against Iran has taken years, those who were directly affected by the Beirut bombing say they still support the concept of fighting state sponsors of terror in the courtroom. “I’m all for using whatever tools we have out there to combat them,” says former first lieutenant Dolphin.

Dolphin, who is not involved in the lawsuits, says he is happy the judge ruled in favor of the victims, but ultimately could not understand why the US government did not react to what was an “act of war’” by Iran.

However, Beirut Families spokeswoman Derbyshire explains that, for her, the courtroom battle has been a better way to obtain justice than going to war. “This is how civilized people go about getting justice,” she contends.

And though the US government would not, or could not, do anything to retaliate against the Beirut bombing, Derbyshire is determined, as a private individual, to get justice for her brother and the other victims.

“My message to Iran is this: I’m not going to give up. And Iran’s Achilles’ heel is its financial position. So maybe this way, by taking their assets and making them pay, we can make Iran think twice about sponsoring terror,” she concludes.

While Iran demands a rehearing of a $1.75 billion payout to Beirut bombing victims, families say they won’t give up the legal fight against Tehran.