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Finding Terrorists' Intent: Aligning Civil Antiterrorism Law with National Security

This Article answers a fundamental question in U.S. counter-terrorism policy: when should a victim of a terrorist attack abroad be able to sue under U.S. laws in U.S. courts? The current principles limiting the extraterritorial application of law fail to adequately reflect the interest a state may have in applying its own law to unconventional national security threats that occur abroad. The three most relevant bases under international law for the extraterritorial application of U.S. anti-terrorism law abroad - passive personality, universal jurisdiction, and protective jurisdiction - fail to tie the application of U.S. law to U.S. security interests. Passive personality, the principle that a state can regulate conduct that injures its nationals, allows victims to sue under U.S. law even if there is little connection to the terrorist act and the United States. The only connection may be that a U.S. national was an unintended victim. Another basis, universal jurisdiction, does not allow regulation of terrorist attacks because there does not exist a general anti-terrorism norm under international law. The last basis, protective jurisdiction, also cannot apply because it only allows regulation of attacks against governmental targets, while most terrorist attacks will target civilians. Instead of attempting to organize civil anti-terrorism law around passive personality, as currently done, the U.S. should propose the creation of a new basis for the extraterritorial application of law that addresses unconventional security threats. Domestic civil anti-terrorism laws should be reformed to apply to any terrorist attack abroad where the terrorists intended to harm a U.S. national, because of their U.S. nationality. This new basis, “intent based national security jurisdiction,” derives from three principles: security, legality and practicality. The new basis furthers the goal of security because victims, even non-U.S. nationals, will be incentivized to investigate the motives of terrorists toward the U.S. and its nationals. It will further the goal of legality because it derives from the current bases under international law and will be more acceptable to other countries than the use of passive personality. It will be more practical because the element of intent acts as an easily identifiable proxy for a U.S. interest. This will discourage judges from dismissing anti-terrorism suits through various procedural mechanisms due to the lack of an identified U.S. interest in allowing the suit to proceed.