America is deeply divided. One of us is a conservative Republican who voted for President Trump. The other is a progressive Democrat who voted for President-elect Biden. We are united, however, by something far more powerful than party: Each of our husbands gave the last measure of his devotion to his country and now rests in Section 60 at Arlington National Cemetery.
As Gold Star widows, we each made the difficult decision to join lawsuits under the Anti-Terrorism Act (ATA) and Justice Against Sponsors of Terrorism Act (JASTA) seeking to hold accountable companies that aided the terrorists who killed our husbands. Congress passed these laws to deter terrorist financing and save American lives in the process. These laws help combat terrorist financing by empowering victims of terrorism to sue those responsible for funding the terrorists in federal court, and they reflect a simple proposition: Terrorists would not be what they are without the financial backing of the multinational corporations that do business with them. As Congress intended, we are pursuing claims against any corporations or banks that helped the terrorists.
Our experience in these cases has taught us that there is significantly more that Congress could do to strengthen victims’ ability to hold accountable corporations and banks that funnel money or other things of value to terrorists. As a start, the new Congress should consider three items.
First, Congress should amend the ATA and JASTA to reject recent opinions in which judges have ignored the law’s text to deny victims their day in court. For example, even though JASTA twice uses the word “indirectly,” several judges have ruled that a company violates the law only if it aids terrorists “directly.” Similarly, some judges have ruled that a corporate defendant is liable only if it is “one in spirit” with the terrorists. This lets corporations off the hook when they knowingly do business with terrorists for profit.
Second, Congress should treat Foreign Terrorist Organizations (FTOs) and Specially Designated Global Terrorists (SDGTs) the same under JASTA. An IED attack in Kabul by the Taliban is just as menacing as an IED attack in Baghdad by Lebanese Hezbollah, and America has an equally strong interest in deterring both. The current law, however, refers only to FTOs. This has led many defendants to argue, incorrectly, that JASTA exempts payments to groups such as the Taliban. Although that is wrong under the existing statute, Congress can make this even clearer by adding SDGT language in JASTA in the same places where FTOs are referenced to make plain that terrorism is terrorism, full stop. This is especially important in the context of Iran, which supports terror through SDGTs as well as FTOs.
Third, Congress should provide additional support for victims’ ability to obtain documents relating to their attack through the Freedom of Information Act (FOIA). Given the overseas nature of terrorist attacks, the U.S. government typically has many of the key documents. And most American victims of terrorism since 9/11 have been service members or civilians supporting U.S. missions in Iraq and Afghanistan. Hundreds of Gold Star families, and thousands of injured service members, have elected to bring terrorism claims and have filed FOIA requests for their records. As a result, the Department of Defense (DOD) faces a crushing backlog of FOIA requests, which delays the families’ ability to have their day in court by months, if not years.
Fortunately, Congress can remedy this for the cost of a couple of football flyovers by appropriating the money necessary for DOD to devote more staff and resources to processing FOIA requests from Americans injured by terrorism. To be clear, we love flyovers (and football) and are not suggesting they stop. For the cost of a few, Congress could help hundreds of Gold Star families and thousands of service members obtain further closure by learning more about their loved ones and obtain the documents necessary for their claims.
Separately, Congress should create a “fast track” priority under FOIA for any requests made on behalf of Americans who were killed or injured while employed by the U.S. government overseas. Currently, media organizations have priority over everyone else in the FOIA queue. If major media outlets can obtain military records in a matter of months through FOIAs, then so should American victims of terror.
No one should go through what we have experienced. By providing victims of terror these legal tools, we can make it less likely that future Americans experience our fate. That is surely something that can bring us together in these divided times. Gold Star families, who have given so much, once more stand ready to serve. With congressional help, we can change how business is done in war zones, save American lives, and honor the sacrifices of so many.
Kelli Hake is the widow of SSG Christopher M. Hake, who was killed by a Jaysh al-Mahdi roadside bomb in Baghdad on March 23, 2008. August Cabrera is the widow of LTC David E. Cabrera, who was killed in an al-Qaeda/Taliban suicide bombing in Kabul on Oct. 29, 2011.