Aiding and Abetting

The Supreme Court deals a win for social media. The victims of terrorism are going to keep trying to hold them accountable.

The United States was in uncharted legal waters.

On October 7, 1985, a group of militants from the Palestine Liberation Front had hijacked the Archille Lauro cruise ship off the coast of Egypt. A half-cooked plan to launch an assault on the port of Ashdod, in Israel, soon gave way to rudderless idea to sail towards Syria. All the while, the hijackers held dozens of passengers hostage.

Like many hijackings, the chaos eventually led to a deadlock. The hostage-takers made a list of demands — freeing Palestinians held in Israeli jails, namely — and wanted safe passage. The demands were ignored.

The terrorists had separated the passengers by nationality and religion: Israelis and Jews were singled out. When a self-imposed deadline came and went, the terrorists picked Leon Klinghoffer, an elderly Jewish man in a wheelchair. He was shot and dumped overboard.

Seemingly losing their appetite to continue the executions, the terrorists sailed back to Egyptian waters, where a deal was brokered. The hijackers boarded an Egyptian airliner, along with PLF leader Abdul Abbas, as the passengers were freed.

It wasn’t until the plane had taken off that America realized it had lost a citizen. Suddenly escape wasn’t acceptable.

The U.S. dispatched more than a dozen planes to find the Egyptian Boeing 737. In the dead of night, the jets approached multiple passenger planes, close enough to read the registration number, before they finally intercepted the right plane. When the pilots refused to comply with an order to divert and land in Sicily, the American planes flipped on their lights and revealed the squadron of F-14s. The pilots obeyed. The scene on the ground was a perplexing standoff: PLF terrorists on an Egyptian aircraft, surrounded by U.S. Navy SEALs, surrounded by Italian military police.

After that diplomatic knot was unravelled, the PLF hijackers and (most of) the masterminds were arrested by the Italians and sent to Rome.

It turns out, that was the easy part.

The Italian government opted not to extradite the hijackers. For the Americans, this was a clear case of piracy and terrorism: Yet, legally, it was neither. The ship was not in international waters when it was hijacked, and the Law of the Sea Convention held that seizing a ship “for political purposes” doesn’t count as piracy. Abbas, despite U.S. intelligence proving he was the ringleader of the attack, was allowed to fly to Egypt and avoid trial. The Italian courts passed down sentences of varying lengths, and ultimately declined to declare the PLF a terrorist organization.

As the messy legal drama wrapped in Rome, the Americans were left fuming. There had been a staggering rise in terrorism in recent years, particularly targeting ships and planes. Given the chance to send a message, they felt Italy had equivocated.

While Abbas’ motivations were complicated, he was part of the leadership of the PLO and was connected to then-leader Yasser Arafat. While the PLO denounced the attack, the Americans weren’t ready to let them off that easily.

Klinghoffer’s family agreed. So they sued everybody involved: The cruise ship company, the PLF, the PLO, even the travel agents. They argued that the hijacking was an act of terrorism carried out by a terrorist group against an American citizen, and therefore the U.S. courts should have jurisdiction. But a New York court was twisted into as many knots as its Italian counterparts, trying to unravel how state immunity for a (technically) non-state actor interacts with the law of the sea.

Eventually, the court let the suit proceed. The PLO opted to settle with Klinghoffer’s family.

This legal rabbit hole had exposed a rather core problem at the heart of American law: Despite being a huge target for terrorism, the United States had no clear way to pursue international terrorists. Had the facts of Klinghoffer’s case been slightly different, his family would have had their case denied from the very beginning. So Congress passed the U.S. Anti-Terrorism Act.

The Act provided a new tort for the victims of terrorism and their families. It allowed Americans to file suit in an American court for acts of terrorism committed against Americans, blowing a hole through the layers of immunity and jurisdiction that had once frustrated Klinghoffer’s family.

In the act, and in subsequent amendments over the years, Congress not only opened the door to suing those who planned and carried out the terror attack, but also to any person or organization which “aids and abets, by knowingly providing substantial assistance” the commission of the attack.

Those few words were put to the test at the U.S. Supreme Court over the past few months, as the justices grappled with whether a law written to hold the PLO accountable for a hijacking on the high seas could be used to hold Twitter and Youtube accountable for Islamic State propaganda disseminated, and monetized, on their platforms.

The decisions are hardly the final word on the matter, and Congress may find itself compelled to craft a legislative fix, just like the 1980s — if they don’t, some other country might. But these verdicts can tell us a lot about the fight that is to come.

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This week’s newsletter is all about the law of terrorism: And the tricky effort to make it apply to the online platforms where terror propaganda thrives.

Earlier this week, for WIRED, I dug into a wide-reaching new lawsuit filed by the families of those killed in a white supremacist attack on a Buffalo supermarket last year.

On a somewhat-related topic, I penned an essay for Unherd about how the Wagner Group’s zeal for combatting terrorism is helping to ingratiate with governments across the African continent: And why that is cause for some worry and self-reflection.

But, now, back to anti-terror law.