Introduction
On April 8, 2019, President Donald Trump designated the Islamic Revolutionary Guard Corps (IRGC) as a “Foreign Terrorist Organization” (FTO) under Section 219 of the Immigration and Nationality Act.
Initially established to defend the Iranian government from external and internal threats in the aftermath of the 1979 Revolution,
the IRGC has developed into “the most powerful controller of all important economic sectors across Iran.”
IRGC subsidiaries built the Tehran–Tabriz railway, the Karkheh Dam, and a gas pipeline from Asaluye to Iranshahr.
Beyond infrastructure construction, the IRGC owns or controls companies in land, air, and marine transportation; tractor and aircraft manufacturing; and the natural gas and telecommunications sectors.
But there is a darker side to the IRGC. The Iranian government uses the organization to “provide support to terrorist organizations, provide cover for associated covert operations, and create instability in the [Middle East].”
In addition to offering training and funds to Hezbollah
and Hamas,
the IRGC has been accused of masterminding several international crimes, such as a 2007 kidnapping of five British nationals,
a 2007 attack on American soldiers,
and a 2019 explosion that damaged commercial ships in the Gulf of Oman.
As for the previously mentioned IRGC-controlled subsidiaries that are central to the Iranian economy, they help comprise a “web of front companies” that the IRGC exploits to “fund terrorist groups across the region, siphoning resources away from the Iranian people and prioritizing terrorist proxies over the basic needs of its people.”
Ultimately, according to President Trump, “If you are doing business with the IRGC, you will be bankrolling terrorism.”
Of course, the “bifarious” nature of the IRGC and its subsidiary entities is not unique.
And the United States government employs a variety of tactics to counter the terrorist activities of these organizations, including economic sanctions
and criminal liability.
While these measures may be effective preventative and punitive tools, neither directly help compensate those injured in terrorist attacks.
The Antiterrorism Act (ATA) serves this compensatory function, enabling injured parties to sue “any person who aids and abets, by knowingly providing substantial assistance, . . . an act of international terrorism [committed by an FTO]” and “recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”
So under the ATA, private parties can sue both the organizations committing terrorist attacks and any actor who aids and abets the illegal conduct. That said, considering the difficulties of bringing FTOs into American courts, much of the litigation is directed at those who aid and abet terrorist attacks.
Put differently, instead of suing the IRGC itself, terrorism victims can sue the deep-pocketed companies who “knowingly provid[ed] substantial assistance” to the IRGC and its subsidiaries.
And as the statutory language indicates, a potential aider and abettor’s mental state is a critical component of establishing liability under the ATA.
But in the Supreme Court’s 2023 Twitter, Inc. v. Taamneh decision, the Justices provided a scrambled account of the ATA’s mens rea inquiry and reshaped the scope of secondary liability in the process.
Although the unanimous Court clarified that culpable aiders and abettors are those who both operate with “general[] aware[ness]” of the role they are playing in the FTO’s terrorist activity and “knowingly” provide substantial assistance to an act of international terrorism
—two distinct inquiries that are not “carbon cop[ies]” of one another
—the majority left unclear how much knowledge (or purpose) is needed to satisfy the latter mens rea element. Consequently, how lower courts interpret the ATA’s mens rea analysis in light of Taamneh will determine an injured victim’s ability to obtain compensation, a defendant’s potential exposure to treble damages, and the American court system’s capacity to “interrupt, or at least imperil, the flow of” support to terrorist organizations.
This Note proceeds in three parts. Part I provides a background of civil liability under the ATA and the Justice Against Sponsors of Terrorism Act (JASTA), which expanded ATA liability to aiders and abettors. It then analyzes Halberstam v. Welch—the framework that JASTA adopted for aiding and abetting claims—and summarizes circuit court cases applying JASTA and Halberstam prior to Twitter, Inc. v. Taamneh. Part II examines Taamneh and identifies the problem that the Supreme Court’s opinion created vis-à-vis what it means to “knowingly” assist acts of international terrorism. To highlight this problem and its practical significance, Part II considers the three mens rea tests that the Supreme Court discussed and compares these distinct standards to their criminal law analogs. Part III proposes a solution for lower courts applying the Taamneh framework to ATA lawsuits, focusing chiefly on extending liability only to culpable actors.