Freedom of speech. Freedom of association. Freedom of movement. Many in the United States take these protections for granted and may not even think about them on a daily, or even weekly, basis. But for people who have fled authoritarian regimes, and in many cases risked their lives to come to the United States seeking refuge, these protections and the hope for safety are paramount. Unfortunately, that promise of freedom and safety is being undermined. Undermined by authoritarian regimes and their allies who are willing to take whatever means necessary – from tracking people with surveillance spyware to hiring hitmen – to show that making it to the United States is not enough to guarantee your freedom or safety.
In recent years, we have witnessed a growing trend of authoritarian regimes reaching across national borders to silence dissent, an act known as “transnational repression.” According to Freedom House, authoritarian governments are “increasingly and more aggressively disregarding U.S. laws to threaten, harass, surveil, stalk, and even plot to physically harm people across the country.” The goal: to intimidate and deter people from exercising their human rights and fundamental freedoms.
This rise in transnational repression is partly attributable to the greater global backlash against democratization and an increase in global digital interconnectedness. Historically, it has been difficult to hold foreign regimes accountable for their actions to target individuals beyond their own national borders, both because these acts can be difficult to track and link to the authoritarian regime and because certain legal doctrines impose obstacles to suits in U.S. courts against sovereign governments or their senior officials. However, two recent high-profile events on U.S. soil – the attempted kidnapping and assassination of Iranian women’s-rights activist Masih Alinejad, and the attempted assassination of famed author Salman Rushdie – again raise the question of whether and how the U.S. legal system can hold accountable not just the individual actors who directly engage in such wrongdoing, but also the authoritarian regimes, officials, and entities who direct, inspire, fund, and facilitate their actions.
What is Transnational Repression?
Authoritarian regimes utilize strategies of transnational repression to silence opposition, to collect information, or to coerce citizens to return to their home country. Acts of transnational repression include assassinations, abductions, digital threats, abuse of arrest warrants, and family intimidation. Often, these tactics are combined in an attempt to exert the maximum coercive effect — what one activist described as the waging of “psychological and emotional warfare.” Typically, authoritarian regimes target the individuals they perceive as posing a threat to their regime’s hegemony, such as political and human rights activists, dissidents, journalists, political opponents, religious or ethnic minority groups, and those who advocate for a better life for the friends and family they left behind in their home country.
Letelier v. Republic of Chile: An Early Attempt to Litigate Transnational Repression
Historically, there have been relatively few instances in which civil claims have been brought against foreign states or actors for engaging in transnational repression on U.S. soil. Letelier v. Republic of Chile, which is believed to be the first wrongful death suit brought against a foreign nation in the United States, stemmed from the brazen 1976 assassination in Washington, DC of Orlando Letelier and his colleague Ronni Moffitt. Letelier served as a high-ranking official and diplomat in Chilean President Salvador Allende’s government until Sept. 11, 1973, when a military coup deposed President Allende and installed Augusto Pinochet as dictator. Letelier was imprisoned by Pinochet’s military junta for 12 months, during which he was tortured and held in various concentration camps. After Letelier was released in 1974, he moved to the United States and worked at the Institute for Policy Studies, where he rose to become one of the most prominent and effective opponents of Pinochet’s regime.
On the morning of Sept. 21, 1976 — eleven days after Letelier was stripped of his Chilean citizenship — Letelier, Ronni Moffitt, and their colleague and Ronni’s husband Michael Moffitt were driving to work when a bomb placed on the bottom of their car detonated, killing Letelier and Ronni Moffitt. Michael Moffitt, who was sitting in the back of the car, survived with minor injuries. The assassinations immediately drew international condemnation, and the CIA reportedly concluded that the assassination had been ordered by Pinochet. The United States prosecuted the conspirators for the assassinations, though never charged Pinochet or the Chilean government for their role in the plot. In August 1978, family members of Letelier and Moffitt filed a civil suit against nine indicted individuals and the Republic of Chile in the U.S. District Court for the District of Columbia. Following the entry of a default judgment against the Republic of Chile, in 1980, the district court concluded it had jurisdiction over Chile under the Foreign Sovereign Immunities Act, and awarded over $5 million in compensatory and punitive damages, as well as attorneys’ fees and out-of-pocket expenses.
However, the plaintiffs struggled to enforce the judgment against Chile. In 1984, the Second Circuit Court of Appeals ruled that Chile’s wholly owned airline was not subject to execution to satisfy the plaintiffs’ default judgment against Chile, acknowledging that its decision was “weighed down by somber thought,” and that it “may preclude the plaintiffs from collecting on their judgment.” In 1990, following Chile’s transition to democracy, the Department of State proposed to settle the dispute through arbitration under the 1914 Chile-United States peace treaty. Chile agreed to the arbitration without admitting liability “in order to facilitate the normalization of relations.” In 1992, the Chile-United States Commission rendered a decision and ordered Chile to pay $2.6 million in damages. The Letelier case illustrates the complicated and winding nature of litigation against a foreign government – while the plaintiffs obtained a judgment for damages two years after filing suit, it took another dozen years, and direct intervention by the U.S. government, for any monetary damages to actually be paid.
Challenges to Litigating Transnational Repression Claims in the United States
There are a number of challenges to successfully litigating claims arising from transnational repression in U.S. courts. First, not all transnational repression actually occurs on U.S. soil. For example, many regimes attempt to coerce individuals living in the United States by targeting their family members living abroad, by engaging in threats and intimidation over the internet, and/or by arresting or harming U.S. residents while they are traveling abroad. When all of the conduct occurs outside the United States, bringing suit in a U.S. court against foreign defendants may be challenging, especially as the Supreme Court continues to limit the extraterritorial application of human rights statutes on which plaintiffs may sue. Second, a foreign official’s sovereign immunity defense under the common law or a foreign state’s immunity defense under the Foreign Sovereign Immunities Act can make bringing an otherwise meritorious suit challenging if there is not a sufficient nexus to the United States. Finally, as the Letelier case illustrates, even when plaintiffs overcome these obstacles and obtain a judgment, enforcing a monetary judgment against a foreign defendant may be time consuming and costly.
Recent Examples of Transnational Repression in the United States
Over the past 16 years, we have witnessed a continuous and concerning rise in authoritarianism around the world. As part of this trend, authoritarian regimes have increasingly relied on transnational repression, both because it can be difficult to police and because it can be an effective means to control dissidents who have fled a country. For example, the People’s Republic of China has surveilled artists, pro-democracy activists, and members of the Tibetan diaspora in the United States, and allegedly engaged in a campaign known as “Operation Fox Hunt” to pressure individuals to either return to China to face criminal accusations or die by suicide. And the Rwandan government has been accused of stalking, surveilling, harassing, and threatening exiles in the United States, including political opposition figures.
Two recent examples of transnational repression, which involved direct attacks on U.S. soil, are illustrative of the increasing brazenness of these types of plots.
The Attempted Kidnapping and Assassination of Masih Alinejad
Masih Alinejad is an Iranian-American journalist and women’s rights activist who fled Iran in 2009. She currently lives in Brooklyn and reports on Iranian human rights abuses. As part of her work, she asks women in Iran to send her videos documenting human rights abuses, such as videos of the morality police beating women and of public protests.
In July 2021, the Department of Justice informed Alinejad that she was the target of a kidnapping plot orchestrated by the Iranian government. According to the criminal indictment, Iranian government agents hired a private investigator to track Alinejad and her family’s movements in New York, researched ways to abduct her, pressured her family members still living in Iran, and tried to lure her to a third country where she could then be forcibly returned to Iran. Then, just this past January, the Department of Justice announced that there was a new assassination plot against Alinejad, again directed by the Iranian government. While eight henchmen involved in the kidnapping and assassination plots have been indicted, the Iranian government and officials who directed the plot have not.
The Attempted Assassination of Salman Rushdie
Salman Rushdie is a British-American novelist. In February 1989, Ayatollah Ruhollah Khomeini, the former supreme leader of Iran, issued a fatwa ordering Muslims to kill Rushdie because his novel, The Satanic Verses, was deemed blasphemous for fictionalizing part of the life of the Prophet Muhammad. After the fatwa was issued, Rushdie spent years in hiding in London, before eventually moving to New York City. As time went on, Rushdie started to live a more public life in New York City. However, the fatwa has never been revoked, and in recent years Iran has affirmed its commitment to the fatwa. For example, in 2012, a foundation associated with Supreme Leader Ali Khamenei increased a multi-million-dollar bounty on the author, and in 2019, Khamenei himself tweeted that the fatwa against Rushdie was “solid and irrevocable.”
Last summer, Rushdie was attacked onstage in western New York, where he was scheduled to give a talk about the U.S. as a safe haven for exiled writers. The near-fatal stabbing attack left Rushdie partially blind and with other significant physical injuries and post-traumatic stress disorder. Although Iran officially denied any involvement in the attack, the regime praised the attack on Rushdie, and the U.S. Department of the Treasury sanctioned a foundation associated with Khamenei for issuing the bounty on Rushdie’s life. Since the attack, criminal proceedings for attempted murder and assault have begun against Rushdie’s attacker, Hadi Matar, but no charges or legal proceedings have been initiated against the Iranian government, Khamenei, or the Khamenei-affiliated foundation.
Conclusion
In recognition of the significant danger transnational repression poses, U.S. authorities have in recent years taken steps to address the threat of transnational repression. For example, since 2019, U.S. State Department Country Reports on Human Rights Practices have included a section on “politically motivated reprisals against individuals located outside the country.” In 2021, the Department of State announced the availability of targeted sanctions, known as the Khashoggi Ban, which authorize visa restrictions on individuals who “directly engage[] in serious, extraterritorial counter-dissident activities, including those that suppress, harass, surveil, threaten, or harm journalists, activists, or other persons perceived to be dissidents.” In February 2022, the FBI launched a website devoted to transnational repression with information on tactics, hyperlinks to recent indictments, and contact information for reporting. To date, however, indictments have been limited to the direct perpetrators of criminal acts on U.S. soil, and it is unclear the extent to which the Department of State has been applying the Khashoggi Ban, as information relating to the imposition of the ban is confidential.
As we will explore further in forthcoming pieces, civil litigation may be available to fill some of the gaps that law enforcement and visa bans cannot fill. The major roadblock to holding authoritarian regimes accountable for transnational repression is the fact that these crimes are transnational: U.S. criminal and civil legal tools are often inhibited by territorial borders and national sovereignty. But just as these regimes exploit national boundaries and laws to violate the safety and security of dissidents and journalists fleeing authoritarianism, so too must the remedy. Civil litigation provides a pathway for holding these authoritarian regimes directly accountable, not just their hired guns, if significant conduct took place in the United States.
The views and opinions expressed in this article reflects the views and opinions of the individual authors and not of Jenner & Block LLP.