Under the “terrorism exception” to the Foreign Sovereign Immunities Act, individuals can sue
US-designated state sponsors of terrorism—currently Iran, Syria, North Korea, and Cuba—for
extraterritorial acts including torture, extrajudicial killing, and hostage-taking. But that is only
possible if the plaintiffs were US nationals at the time the act occurred.
Congress could amend the statute to allow individuals to sue if they are US nationals or lawful
permanent residents at the time the claim is brought, allowing newly arrived dissidents who are
the target of transnational repression to hold the governments of their origin countries
accountable.
Staying on the topic of exceptions to the FSIA, the Homeland and Cyber Threat (HACT) Act has
been introduced and re-introduced before the House since 2019 and would partly address
transnational repression by allowing dissidents who are US nationals to sue foreign states that
launch cyberattacks against them.
However, this would not address the problem of accountability against private companies—who
facilitate the sale of spyware used against dissidents. A series of judgments from the US
Supreme Court have restricted the possibilities for corporate liability and this negatively impacts
the ability of US-based non-citizen dissidents to sue companies involved in surveillance. These
barriers to accountability in US domestic law must be removed.
2- How to address transnational repression from US allies versus from US adversaries.
Another critical aspect of this problem is to how to identify and address threats posed to US
citizens and residents by US allies, not adversaries. A quick glance at the FBI website to report
instances of transnational repression shows a list of DOJ indictments against individuals from
China, Russia, and Iran but there is nothing to indicate that these threats can also come from
Saudi Arabia, Egypt, the UAE, Rwanda, and even India.
Transnational repression is not only carried out by US adversaries, it is also carried out by
authoritarian governments with strategic partnerships with the US conditioned on aid packages,
arms deals, political support, and trade relationships. These authoritarian states have the same
interest other authoritarian states do in silencing dissidents abroad, and their friendly relationship
with the US does not deter them from targeting dissidents on US soil.
The nature of the relationship between governments does however affect how confident the
victims and impacted communities feel in coming forward to law enforcement here in the US to
inform authorities of the problem. In consultations I have had with dissidents from countries
friendly with the US, they have expressed fear or reluctance in approaching US authorities to
detail the threats they face. There is a pervasive feeling that US authorities may not defend their
interests in the same way they would if the perpetrators were from an “adversary” country like
Russia, China, or Iran—where US foreign policy has taken a clear position in defending the
interests of Americans with no trade-offs.