Anti-Terrorism Litigators Are Optimistic About Their Field
A recent Supreme Court case and the arrival of the Trump administration could make the next few years very busy for anti-terrorism litigation.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The detailed footnotes contain material that did not appear in the Bloomberg Law version of the piece. You can think of the footnotes as a form of “bonus content” for Original Jurisdiction subscribers.
Lawyers leaving the federal government have flooded the market with résumés over the past few weeks, causing the supply of those with government expertise to outstrip demand.1 And with Attorney General Pam Bondi de-emphasizing white-collar enforcement, which will presumably reduce work for firms in this space, federal prosecutors with this background could have especially challenging job searches.
Government lawyers seeking new opportunities would benefit from expanding their horizons beyond Biglaw white-collar practice. They should consider litigation boutiques, which are handling some of the most interesting cases in the country. And if they have national-security expertise, they should look into anti-terrorism litigation—a field poised for growth over the next few years.
Next week, Raj Parekh, former Acting US Attorney for the Eastern District of Virginia, will join Sparacino PLLC, a D.C.-based boutique that represents more than 5,000 Americans in civil litigation arising out of terrorist attacks. It’s a natural fit for Parekh, who worked on national-security and terrorism issues in the U.S. Attorney’s Office, the Counterterrorism Section of the U.S. Department of Justice (DOJ), and the Central Intelligence Agency.2
Parekh’s docket at Sparacino, where he will lead the firm’s newly created E.D. Va. National Security Practice, will be different from his past work as a prosecutor, despite the shared subject matter. Anti-terrorism litigation on the civil side takes the form of lawsuits for money damages brought by victims of terrorism or their survivors, who are represented by firms typically on a contingency-fee basis.
The vast majority of cases are brought under the Justice Against Sponsors of Terrorism Act (JASTA). Passed in 2016, JASTA amended the Anti-Terrorism Act (ATA) to allow victims of terrorist attacks or their families to sue not just terrorist groups—who are often impossible to locate, judgment-proof, or both—but anyone who “aids and abets” terrorists.3 In passing JASTA, “Congress expressly stated that civil lawsuits brought by terrorism victims serve national security by deterring support of terrorism,” Parekh explained.4
“I’m very much of the view that we are advancing national security by bringing these cases,” said Joshua Branson, a partner at Kellogg Hansen and prominent anti-terrorism litigator. “Congress made the judgment that there need to be civil remedies against companies that go into conflict zones and pay money to terrorists.”5
So even though Parekh will now be pursuing multinational corporations rather than ISIS leaders, he sees what he’ll be doing at Sparacino as a continuation of his work as a prosecutor.
“I’ve spent my prosecutorial career pursuing justice for victims and seeking to hold accountable those who threaten our national security,” he said. “It’s a rare opportunity to be at a law firm pursuing these goals in the private sector.”
Managing partner Ryan Sparacino launched his firm eight years ago this month, after seeing the market opportunity presented by JASTA’s creation of secondary liability for terrorism. Since then, the Sparacino team has grown to include former CIA officers, former counterterrorism officials from the Treasury Department, and former DOJ prosecutors like Parekh—who joins at an exciting time for anti-terrorism litigation, according to Sparacino.
“The pace of ATA litigation is set to dramatically accelerate in the next 12 to 18 months, and 2025 will be our busiest year ever,” Sparacino told me. “We’ll be filing at least half a dozen major new terrorism lawsuits in the next six months.” And a number of these cases will be filed in the Eastern District of Virginia, making Parekh’s expertise as a senior federal prosecutor in that district especially valuable.
What’s driving increased activity in the space? Sparacino cited three developments.
First, there has been a significant amount of terrorist activity in the past few years. Most prominent was Hamas’s attack on Israel on October 7, 2023—and Sparacino’s firm represents a number of clients affected by what happened on that tragic day.
Second, the U.S. Supreme Court’s decision in Twitter, Inc. v. Taamneh is making itself felt in the lower courts. Although the defendant social-media companies won that case, defeating claims they aided and abetted ISIS, Sparacino described Twitter as “easily amongst the most Pyrrhic victories any defense bar has ‘won’ in my lifetime: they defeated the case against Twitter, but sacrificed some of their most-cherished arguments.”
Justice Clarence Thomas’s unanimous opinion in Twitter is the Court’s most detailed analysis of JASTA to date. As Josh Branson explained, “It closes the door on imposing liability on a social-media or communications company simply because the company failed to prevent all terrorists from using its services.” (And both Branson and Sparacino told me they’re fine with this, claiming that they don’t bring cases unless there’s evidence suggesting the defendants acted “consciously, voluntarily, and culpably,” to use Justice Thomas’s words.)
But Twitter’s discussion of aiding-and-abetting liability also contains language that rejects two main legal theories of the ATA defense bar, according to Branson. It forecloses what he calls the “receipts” or “dollars to bombs” argument, in which a defendant claims it can’t be held liable unless the plaintiff can show that the specific money the defendant paid to the terrorist group was used to fund the specific terrorist attack at issue.
“Money is fungible,” he said. “And terrorists don’t keep bookkeeping records like that.”
Per Branson, Twitter also rejects any notion of “specific intent.” It’s now clear, he said, that a defendant can be held liable even if it wasn’t “one in spirit” with the terrorists—that is, even if the defendant didn’t want Americans to die, but instead had another motivation for entering into financial transactions with a terrorist group. For example, a company that paid bribes or protection money to a terrorist group—not because it wanted to fund terrorism, but simply because it wanted to make money—can be held liable under the ATA. (ATA defense lawyers disagree with Branson’s interpretation of the Twitter opinion, arguing that their clients are unfairly being held liable for acts they do not condone, and these matters are being litigated in district and circuit courts.)6
Third, although Ryan Sparacino described anti-terrorism work as nonpartisan, supported by Democrats and Republicans alike, he said President Donald Trump’s administration should benefit the field.
“With the Trump administration de-emphasizing traditional corporate, white-collar matters in favor of national security- and border-facing matters, we expect the pace of terrorism-related enforcement matters to surge,” he said.
Sparacino is particularly optimistic about the new administration’s hard-line approach to Iran, the world’s leading state sponsor of terrorism: “There’s no question about it. The Trump administration is taking the threat of Iran-backed terrorism more seriously than the Biden administration.”
Sparacino pointed out how the Trump administration has already thrown its weight behind private litigants who are pursuing claims against Iran. In a February 4 executive order, Trump directed the attorney general to “pursue all available legal steps to identify Iranian governmental assets in the United States and overseas, and help American victims of terrorism, including Gold Star Families, collect on Federal judgments against Iran.”7
Sparacino’s firm represents more than 1,000 Gold Star families—those who lost an immediate family member as the result of active-duty military service. Since the 9/11 attacks on American soil, most U.S. victims of terrorism have been members of the military serving overseas in conflict zones, where they are subject to attacks from groups such as Hamas, Hezbollah, al-Qaeda, ISIS, and Iran’s Islamic Revolutionary Guard Corps.8
“We feel we have the best clients in the world,” Sparacino told me. “Our clients are heroes. And our cases are often the last chance for them to hold people accountable for what happened to them or their loved ones.”
“I love my corporate clients, but there’s something different about representing soldiers and Gold Star families,” Branson said. “They have all sacrificed immensely for our country, and very few have gotten what they are due. So it’s very humbling to work on these cases and to try and do the best that we can for them.”
Legal recruiter Dan Binstock of Garrison—who works with many government lawyers transitioning into private practice, alongside colleagues of his like Amy Savage—told The New York Times that his firm had received perhaps 10 times as many résumés from federally employed lawyers as would be usual after a presidential transition.
Parekh received the Director’s Award for Superior Performance in U.S. v. Mohamad Khweis, which led to the conviction of the first individual to face a jury trial in the United States after having joined ISIS in ISIS territory, and the Attorney General’s Award for Distinguished Service for the historic prosecution of the ISIS “Beatles,” Alexanda Kotey and El Shafee Elsheikh. Kotey and Elsheikh were convicted for their participation in a hostage-taking scheme involving the detention of 26 hostages from 12 countries that resulted in the deaths of American, British, and Japanese nationals in Syria.
In 2015, the federal government established the U.S. Victims of State Sponsored Terrorism Fund (USVSST Fund), which provides compensation to certain victims of international terrorism who were harmed by state-sponsored terrorism but find themselves unable to collect on their judgments. But the Fund does not have enough money to pay anything close to the eligible victims’ full damages.
Parekh spoke to me while still employed by the federal government, but his views do not represent those of his employer. And his move to Sparacino was planned well before—and made independently of—all the recent drama at the DOJ. As he wrote in a LinkedIn post, “My departure is entirely unrelated to current events.”
The original ATA, which was passed back in the early 1990s, “trundled along without a whole lot of notoriety until JASTA was enacted in 2016,” Branson explained. Before the passage of JASTA, he said, courts were “all over the map” on whether the ATA allowed for imposing so-called “secondary liability” on organizations or individuals that didn’t engage in acts of terrorism themselves, but supported terrorist groups.
As noted in an amicus brief filed by Professor Stephen Vladeck in Twitter, Inc. v. Taamneh, “[p]erhaps the most important and widely cited decision addressing [secondary liability pre-JASTA] was Boim v. Holy Land Foundation for Relief and Development (7th Cir. 2008). Writing for a majority of the en banc court, Judge [Richard] Posner held that ‘statutory silence on the subject of secondary liability means there is none.’”
But the Boim majority went on to hold, in Vladeck’s words, that “the primary liability imposed by the ATA includes circumstances in which the predicate federal criminal violation is nothing more than the provision of material support to terrorists—which is, itself, a form of secondary liability.”
Most JASTA defendants are foreign rather than U.S. corporations, often based out of the Middle East or China, according to Sparacino—who said that fewer than 20 percent of the defendants in his firm’s matters are U.S. entities. As he told me, “I’m pleased to report that It’s really, really, really rare for U.S. companies to cross the moral Rubicon involved in paying terrorists. But those who do will receive no quarter from us just because they are American.”
Sparacino added that if the Trump administration enforces sanctions against Iran more vigorously than the Biden administration, as he expects it will, more money will flow into the USVSST Fund, which is funded by proceeds from sanctions enforcement (both civil and criminal). This would benefit plaintiffs in ATA cases who are eligible for payments from the Fund.
A self-described “proud Army brat,” Sparacino lost an uncle in the Vietnam War, and his father, a career soldier, lost his best friend in that conflict. Because of his family’s history, Sparacino told me, he is especially proud and honored to represent service members and their families in terrorism-related cases.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts of podcast interviews; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.