Substantive Due Process, Plenary-Power Doctrine, and Minimum Contacts: Arguments for Overcoming the Obstacle of Asserting Personal Jurisdiction Over Terrorists Under the Anti-Terrorism Act

Abstract

Congress enacted the Anti-Terrorism Act to create a federal cause of action for torts arising out of acts of international terrorism that cause injuries to U.S. citizens. Even though victims have benefited from the Act, they have also faced significant hurdles in bringing their causes of action. Meeting the requirements for personal jurisdiction has been one of these major difficulties. Concerns over the lack of minimum contacts between the terrorist defendants and the United States sufficient to satisfy the requirements of due process have led many courts to conclude that they did not have personal jurisdiction over the defendants. This Note proposes three methods that courts can use to exert personal jurisdiction over terrorists under the Anti-Terrorism Act. First, by drawing an analogy to the plenary-power doctrine applied in the immigration-law context, this Note argues that courts should apply a limited view of substantive due process to assert personal jurisdiction over terrorists. Second, assuming, arguendo, that terrorists are entitled to full due-process protections, this Note asserts that a separate inquiry into personal jurisdiction is unnecessary because a due-process analysis is subsumed into the Anti-Terrorism Act. Finally, assuming, arguendo, that a traditional due-process inquiry is required, this Note outlines general principles that courts can use in exerting personal jurisdiction over terrorist defendants.