Fordham Law Review Volume 72 Issue 2 Article 14 2003 An Old Law for a New World? Third-Party Liability for Terrorist Acts - From the Klan to Al Qaeda Rebecca Blackmon Joyner Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Rebecca Blackmon Joyner, An Old Law for a New World? Third-Party Liability for Terrorist Acts - From the Klan to Al Qaeda, 72 Fordham L. Rev. 427 (2003). Available at: https://ir.lawnet.fordham.edu/flr/vol72/iss2/14 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. NOTE AN OLD LAW FOR A NEW WORLD? THIRD-PARTY LIABILITY FOR TERRORIST ACTS-FROM THE KLAN TO AL QAEDA Rebecca Blackmon Joyner* INTRODUCTION On August 15, 2002, 744 plaintiffs, including surviving spouses, children, siblings, parents, and legal representatives of those killed in the September 11, 2001 terrorist attacks, filed suit against financial institutions, charities, the country of Sudan, members of the Saudi royal family, and several individuals known or suspected to be members of the Al Qaeda terrorist organization, including Osama bin Laden.' Plaintiffs' complaint in Burnett v. Al Baraka Investment & Development Corp. alleged fifteen grounds including federal claims under the Torture Victim Protection Act2 and the Federal Racketeer Influenced and Corrupt Organizations ("RICO") Act3 as well as state * J.D. Candidate, 2004, Fordham University School of Law; MPA, 1998, Columbia University School of International and Public Affairs. I gratefully acknowledge the invaluable assistance, encouragement, and insight of Professor Robert Kaczorowski throughout this project. I would also like to thank my mom, my dad, my step-dad, my in-laws, my sisters, Sarah and Jenny, and my husband, Ben, for their continued love, support and encouragement in all my academic endeavors. 1. See Burnett v. Al Baraka Inv. & Dev. Corp. (D.C. Cir. filed Aug. 15, 2002), available at http://news.findlaw.com/hdocs/docs/terrorism/burnettba8l502cmp.pdf (last visited Sept. 6, 2003) [hereinafter Burnett Complaint]. Plaintiffs in this case recently withstood a motion to dismiss brought by five of the defendants seeking relief before the court. The district court rejected the plaintiffs' claim under RICO for want of standing, see Burnett v. Al Baraka Inv. & Dev. Corp., No. CIV.A.02-1616, 2003 WL 21730530, at *9-14 (D.D.C. July 25, 2003), and suggested that there is only limited evidence to support plaintiffs' claim against Al Rahji Banking and Investment Corporation, a Saudi Arabian retail bank. See id. at *17-18. The court encouraged Al Rahji to bring a motion for a more definite statement under Federal Rules of Civil Procedure 12(e) and, upon plaintiffs' response, again seek a motion to dismiss. See id. at *18. 2. 28 U.S.C. § 1350 (2000). 3. 18 U.S.C. § 1962 (2000). FORDHAM LAW REVIEW [Vol. 72 common law claims such as wrongful death, negligence, and negligent or intentional infliction of emotional distress.4 In April of 1871, Congress passed the Ku Klux Klan Act, which provided both civil and criminal penalties against a person who conspires to violate another's civil rights.' Sections 1 and 2 of this Act are now codified as 42 U.S.C. §§ 1983 and 1985.6 Section 6 of the Act created a claim for third-party liability against any person who, with knowledge of a conspiracy to violate another's civil rights and the capacity to prevent the act, failed to do so.' Codified in federal statutes as 42 U.S.C. § 1986,8 this section of the law has remained relatively untapped since its enactment.9 Designed to stop Ku Klux Klan (the Klan) violence erupting across the Reconstruction South, section 6 of the Act recognized that Klan activities could not exist without acceptance by the local community."° While other sections of the Act provided a direct remedy against civil rights conspirators," section 6 extended civil responsibility for Klan violence to members of the local community whose quiet assent made it possible. 2 Legislators believed that by making area leaders financially responsible for terrorist acts, they would bring social forces to bear to stop the Klan. 3 While developed to prevent violent acts against newly-freed black citizens and those white citizens who would support their struggle, 4 application of section 6 of the Ku Klux Klan Act of 1871 need not have such a limited reach. Structured to create a disincentive to those who would protect or foster conspiratorial terrorist acts, 5 section 6 of the Act has a very obvious modern application-international terrorism. This Note will evaluate whether the plaintiffs in the Burnett case referenced above could have, in addition to their existing 4. See Burnett Complaint, supra note 1, at 240-56. 5. See H.R. Con. Res. 320, 42d Cong., 17 Stat. 13 (1871). 6. See 42 U.S.C. § 1983 (2000) (providing civil remedies against any person who, acting under color of state law, violates a person's civil rights); id. § 1985 (providing civil remedies for any person who conspires to violate another's civil rights). Section 2 of the statute as originally enacted also contained a criminal remedy against any person conspiring to violate another's civil rights. H.R. Con. Res. 320, 42d Cong. § 2 (1871); 17 Stat. 13 (1871). The United States Supreme Court ruled that portion of the law unconstitutional in United States v. Harris,106 U.S. 629 (1882). 7. See H.R. Con. Res. 320, 42d Cong. § 6 (1871); 17 Stat. 13 (1871). 8. 42 U.S.C. § 1986 (2000). 9. See Linda E. Fisher, Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 1986, 56 Wash. & Lee L. Rev. 461, 470 (1999) ("[C]ivil rights litigators are not generally familiar with [§ 1986] and few reported opinions discuss it."). 10. See infra notes 113-17 and accompanying text. 11. See H.R. Con. Res. 320, 42d Cong. §§ 1-2 (1871); 17 Stat. 13 (1871). 12. See infra notes 113-17 and accompanying text. 13. See infra notes 113-17 and accompanying text. 14. See infra notes 25-107 and accompanying text. 15. See infra notes 113-17 and accompanying text. 2003] THIRD-PARTY LIABILITY FOR TERRORIST ACTS 429 claims, also sought a remedy under 42 U.S.C.16 § 1986. As this Note demonstrates, jurisdiction is appropriate. Part I of this Note traces the legislative history of the so-called Sherman Amendment, the provision that would become § 1986. This part places the Klan Act in social and political context with a discussion of Klan activities in the Reconstruction South and the federal government's response to those activities. 7 Part I also explores the policy and legal rationale for Congressional action of this type. 8 Part II examines judicial review of the law as enacted, reviewing Supreme Court jurisprudence on both 88 1985 and 1986 and articulating judicially-constructed tests for both claims. 9 Part III applies the facts alleged in the Burnett complaint to the judicially- created tests for a § 1986 claim. 0 This Note concludes that application of § 1986 to international terrorism is compatible with many of the framers' policy goals highlighted during debate on section 6 of the 1871 Act.2' However, limitations inherent in the legislature's transition from a strict liability standard to a negligence standard for § claims 22 and the Supreme Court's narrow application of § 198523 1986 24 would limit recovery in Burnett and other similar cases. I. THE Ku KLUX KLAN ACT OF 1871 Part I addresses the social and political changes that took place in the post-Civil War South that gave rise to the development of the Ku Klux Klan. 5 It describes the governmental response that manifested itself in a legislative remedy, one controversial element of which was the Sherman Amendment. 6 Finally, this part highlights both the policy and legal rationale put forth by proponents of the controversial Sherman Amendment to justify its adoption by the Forty-second Congress. 7 A. The Problem President Abraham Lincoln emancipated the slaves on January 1, 1863,28 and, with the ratification of the Thirteenth, 9 Fourteenth3 ° and 16. See infra notes 343, 364, 382, 394 and accompanying text. 17. See infra notes 25-107 and accompanying text. 18. See infra notes 108-54 and accompanying text. 19. See infra notes 160-248 and accompanying text. 20. See infra notes 268-397 and accompanying text. 21. See infra notes 253-67 and accompanying text. 22. Compare infra note 92 and accompanying text with infra notes 101-04 and accompanying text. 23. See infra notes 186, 204-05, 318-21 and accompanying text. 24. See infra notes 401-03 and accompanying text. 25. See infra notes 28-51 and accompanying text. 26. See infra notes 52-107 and accompanying text. 27. See infra notes 108-54 and accompanying text. 28. See The Emancipation Proclamation (Jan. 1, 1863), reprinted in 6 A FORDHAM LAW REVIEW [Vol. 72 Fifteenth3" Amendments to the United States Constitution, by 1870 former slaves maintained a legal status equivalent to those who had formerly held them in bondage.32 Southern whites, long believing in the inferiority of the black race and fearful of radical changes in their economic, political and social life, instituted a series of laws designed to keep former slaves subordinate, despite their newly-freed status.33 These so-called Black Codes, enacted as early as 1865 and modeled on Slave Codes,34 provided for the continuation of contract labor and "plantation discipline," limited black land ownership, instituted vagrancy laws punishable by plantation labor35 and, after ratification of the Fifteenth Amendment, instituted poll taxes and other voting impediments designed to limit black suffrage.36 It was in this context that the Ku Klux Klan was born.