He pioneered the pursuit of foreign governments in US courts for complicity in terrorism
- Harrison Smith
- Friday 27 December 2019 00:00
Gerson was counsel to the US delegation to the UN from 1981 to 1986 ( Gerson family )
Washington lawyer and legal scholar Allan Gerson helped to pioneer the practice of suing foreign governments in US courts for complicity in terrorism, representing victims’ families in the aftermath of the Lockerbie bombing and the 9/11 terrorist attacks.
Gerson, who has died aged 74, was an author, private-practice lawyer, former professor at George Mason University and deputy assistant attorney general under president Ronald Reagan, known for representing victims of human rights abuses and terrorist attacks. He also distinguished himself as a photographer, with work collected at the International Photography Hall of Fame Museum in St Louis, and as a jewellery designer who turned some of his images into brooches.
The son of Jewish refugees from Poland, he came to the United States under a false name in 1950 and later identified as a former “dreamer”, likening himself to the roughly 700,000 undocumented immigrants who arrived in the country as children and may soon be subject to deportation under the Trump administration.
As a young Justice Department trial lawyer, he pursued Nazi war criminals who had immigrated to the US, later rising to become senior counsel to two US ambassadors to the United Nations (UN), Jeane Kirkpatrick and General Vernon Walters.
Throughout, he maintained that the law had a decisive role in public policy and international affairs – a belief that drove his decade-long fight for justice for the victims of Pan Am Flight 103, which exploded over Lockerbie, Scotland, on 21 December 1988, en route to New York from London. The bombing killed all 259 passengers and crew, along with 11 people on the ground, and remains the deadliest terrorist attack in British history. Among the victims were 189 Americans, including many study-abroad students from Syracuse University.
Gerson launched what began as a seemingly quixotic legal effort, seeking to obtain compensation for victims’ families from the government of Libyan ruler Muammar Gaddafi, which was accused of carrying out the bombing. His work spurred new legislation that paved the way for lawsuits against countries including Syria, Cuba, Iran, Saudi Arabia and Libya, where a legal team negotiated a $2.7bn settlement in 2003 for the Lockerbie bombing.
Gerson’s work on the case emerged out of a 1992 opinion article he wrote in The New York Times, calling for the UN to create a claims commission to compensate survivors’ families using Libyan assets. His article caught the attention of Bruce Smith, a former Pan Am pilot whose wife was killed in Lockerbie and who retained Gerson in an effort to bring the UN proposal to fruition.
That idea never took off, leading Gerson to launch his campaign to sue Libya for damages – a gambit that tested the centuries-old doctrine of sovereign immunity, in which governments are effectively considered above the law, not subject to civil suits or criminal prosecution without their consent. It was also unusual in that Gerson was representing just one of the victims’ relatives, Smith, with other families taking part in a suit charging Pan Am with negligence for failing to detect the bomb.
Gerson partnered with a recent law school graduate, Mark Zaid, and filed suit in a federal court in New York in 1993. By then, he had been forced out of the Washington office of Hughes Hubbard and Reed, where a colleague was hired to take on Gaddafi as a client, resulting in a conflict of interest.
Their case proved unsuccessful amid sovereign immunity concerns. But as it proceeded, Gerson and Zaid embarked on a new tack, drafting and championing what became the 1996 Antiterrorism and Effective Death Penalty Act, which enabled lawsuits against countries designated by the State Department as state sponsors of terrorism.
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The legislation was signed into law after another terrorist attack, the 1995 bombing of a federal building in Oklahoma City, Oklahoma. After Libyan intelligence officer Abdel Basset Ali al-Megrahi was convicted of the Lockerbie bombing in 2001, a civil suit against Libya moved ahead, resulting in $10m compensation for each victim, paid out over several years from an escrow account in a Swiss bank.
In 2016 congress overrode president Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act, which carved out further exemptions to sovereign immunity and enabled 9/11 victims’ families to sue Saudi Arabia for its alleged support for the 2001 attacks.
Allan Gerson was born in Samarkand, then part of Soviet Uzbekistan, in 1945. His parents had spent part of Second World War in Siberian labour camps and moved south to get closer to the British mandate of Palestine.
His father had previously worked as a book-keeper at his family’s candy store in Zamosc, Poland, and his mother was a dressmaker. They moved to a displaced-persons camp in Germany, where they adopted a false identity, Blumstein, to receive immigration visas belonging to another family that had decided to move elsewhere.
Gerson studied economics at the University at Buffalo in New York, graduating in 1966. He received a law degree from New York University in 1969, a master of laws degree from the Hebrew University of Jerusalem in 1972 and a doctor of juridical science from Yale University in 1976.
He joined the Justice Department as a trial lawyer the next year and eventually moved to the Office of Special Investigations, where he pursued former Nazi criminals. Many were deported through civil proceedings.
Gerson was named Kirkpatrick’s senior counsel in 1981 and later chronicled those years in a book, The Kirkpatrick Mission: Diplomacy Without Apology (1991). He was later a senior fellow at the American Enterprise Institute and the Council on Foreign Relations, and wrote books including Israel, the West Bank and International Law (1978) and Privatizing Peace: From Conflict to Security (2002) with Nat Colletta.
Gerson developed close relationships with some of the families of the Lockerbie bombing victims and discussed their plight in The Price of Terror (2001), written with the journalist Jerry Adler. The book also covered the legal drama surrounding the terrorist attack, looking somewhat optimistically towards the future. “Terrorists who might be undeterred by the threat of American military force,” the authors wrote, “must now weigh the possibility of retaliation by the world’s largest contingent of lawyers.”
He is survived by his wife and three children.
Allan Gerson, lawyer, born 19 June 1945, died 1 December 2019
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