1 71 Fed. Reg. 39,696 (July 13, 2006). The rescission ended Libya’s designation as a state sponsor of terrorism under three statutes: section 6(j) of the Export Administration Act, 50 U.S.C. App. §2405(j) (continued in effect by Executive Order No. 13,222 of August 12, 2001); section 40 of the Arms Export Control Act, 22 U.S.C. §2780; and section 620A of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. §2371 (c) (Supp. 4 2004). Secretary Rice’s action followed the completion of a forty–five–day congressional review period of President George W. Bush’s certification to Congress that Libya had not provided support for any acts of international terrorism during the preceding six–month period and had given assurances that it would not support acts of international terrorism in the future. Presidential Determination No. 2006–14, Certification on Rescission of Libya’s Designation as a State Sponsor of Terrorism, 71 Fed. Reg. 31,909 (June 1, 2006).

2 Libya was designated as a state sponsor of terrorism under the Export Administration Act on December 29, 1979. See Letter to the Speaker of the House and the President of the Senate, Enclosure 2, pt. III, 2 Pub. Papers: Jimmy Carter 2290, 2294 (Dec. 29, 1979)Google Scholar; Revisions to Reflect Identification and Continuation of Foreign Policy Export Controls, 45 Fed. Reg. 1595, 1596 (Jan. 8, 1980) (codified at 15 C.F.R. §385.4(d) (1980)).

3 Madeleine, Albright With Bill, Woodward, Madam Secretary 328 (2003)Google Scholar (“Before Osama bin Laden, there was Libyan leader Muammar Qadhafi”); The Nature and Extent of Libya’s Direct Involvement in International Terrorism: Hearing Before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 99th Cong. 38 (1986)Google Scholar (statement of Ambassador Robert B. Oakley, director, Office for Counterterrorism and Emergency Planning, U.S. Dep’t of State) (Libya “far and away” most active supporter of terrorism, especially against Americans and Europeans); U.S. Dep’t of State, Bureau of Public Affairs, Special Rep. No . 138, Libya Under Qadhafi: A Pattern of Aggression (1986) [hereinafter Libya Under Qadhafi] (Libya’s anti–Western activities may be surpassed only by Soviet bloc), reprinted in id. at 63–70. Libya’s involvement in other violent incidents such as the killing of a London constable by gunfire from Libya’s diplomatic mission contributed to its “rogue state” reputation. See, e.g., Rosalyn, Higgins, UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges: Government Response and Report, 80 AJIL 135 (1986)Google Scholar.

4 It was common in the 1980s and 1990s for U.S. officials to refer to Libya as a “rogue state.” E.g., U.S. Security Policy Toward Rogue Regimes: Hearing Before the Subcomm. on International Security, International Organization and Human Rights of the House Comm. on Foreign Affairs, 103d Cong. (1993). This label was still in use by administration officials as recently as 2002. See John, R. Bolton, Beyond the Axis of Evil: Additional Threats from Weapons of Mass Destruction (lecture by under secretary for arms control, U.S. Dep’t of State) (May 6, 2002), available at <http://www.heritage.org/Research/NationalSecurity/HL743.cfm==Google Scholar; see also Robert, S. Litwak, Rogue States and U.S. Foreign Policy 3 (2000)Google Scholar (“The term ‘rogue state’ is an American political rubric without standing in international law that has gained currency since the end of the Cold War.”).

5 For its part, Libya justified its actions as legitimate support for national liberation movements such as the African National Congress and the Palestine Liberation Organization which the United States subsequently lionized, see Lally, Weymouth, The Former Face of Evil, Newsweek, Jan. 20, 2003, at 36 Google Scholar (interview with Colonel Qaddafi), or as the only available defensive measures it could take to counter alleged U.S. aggression, see Andrew, Solomon, Circle of Fire; Libya’s Reformers Dream of Rejoining the World, Will the Hard–Liners Let That Happen? New Yorker, May 8, 2006, at 44, 47 Google Scholar (during the presidency of Ronald Reagan, Libya was “expecting America to attack us any time— our whole defensive strategy was how to deal with the Americans,” according to Qaddafi’s son. Libya “used terrorism and violence because these are the weapons of the weak against the strong. I don’t have missiles to hit your cities, so I send someone to attack your interests. Now that we have peace with America, there is no need for terrorism, no need for nuclear bombs.”).

6 The literature on the Pan Am 103 bombing is both extensive and diverse. See, e.g., Susan & Daniel Cohen, Pan Am 103: The Bombing, The Betrayals, and a Bereaved Family’s Search for Justice (2000)Google Scholar (Pan Am family members); Matthew, Cox & Tom, Foster, Their Darkest Day: The Tragedy of Pan Am 103 and Its Legacy of Hope (1992)Google Scholar (investigative reporters); Allan, Gerson & Jerry, Adler, The Price of Terror (2001)Google Scholar (attorneys for Pan Am family members); R. Doug, Wicker, Terrorist Attacks: The Bombing of Pan am Flight 103 (2003)Google Scholar (for juvenile audiences).

7 President Bush’s justification for rescinding Libya’s terrorism designation concludes: “Rescission in this case will strongly support the objectives of the state sponsor legislation. Libya has responded in good faith not only in the area of international terrorism but also in the related field of weapons of mass destruction. Libya will become a useful model to point to as we press for changes in policy by other countries—Iran, North Korea, and others—vital to United States national security interests and international peace and security.” Presidential Determination No. 2006–14, supra note 1, at 31,914.

8 Previously, countries had been removed from the terrorism list three times. South Yemen was removed when it was absorbed into North Yemen, which was not designated as a state sponsor of terrorism. See U.S. Dep’t of State, Patterns of Global Terrorism: 1990, at 32 (1991)Google Scholar [hereinafter Patterns: 1990]. The State Department’s annual Patterns of Global Terrorism series and its successor, Country Reports on Terrorism, are available online at <http://www.state.gov/s/ct=Google Scholar. Iraq was removed in 1982 before the law set out a particular threshold for doing so, see U.S. Dep’t of State, Patterns of Global Terrorism: 1987, at 38 (1988)Google Scholar, was redesignated in 1990, see Patterns: 1990, supra, at 34, and was removed a second time in 2004 on the basis of the change in government following Saddam Hussein’s removal, see 69 Fed. Reg. 58,793 (2004) (presidential certification to Congress); id. at 61, 702 (rescission of designation by secretary of state).

9 See Litwak, supra note 4 (case studies of U.S. policies toward Iraq, Iran, and the Democratic People’s Republic of Korea). But cf The Collected What If? Eminent Historians Imagine What Might Have Been (Robert, Cowley ed., 2001)Google Scholar (counterfactual speculations about key historical events).

10 See, e.g., David, Leppard, On The Trail of Terror: The Inside Story of The Lockerbie Investigation (1991)Google Scholar; David, R. Andrews, A Thorn on the Tulip—A Scottish Trial in the Netherlands: The Story Behind the Lockerbie Trial, 36 Case W. Res. J. Int’l L. 307, 308 (2004)Google Scholar (investigation included “15,000 interviews conducted in over twenty countries, 35,000 photos, and 180,000 pieces of evidence”).

11 Resort to War and Armed Force, 1981–88 Cumulative Digest §1, at 3405–10.

12 Before joining the second Bush administration, John Bolton took this position. See U.S. Policy Toward Libya: Hearing Before the Subcomm. on Near Eastern and South Asian Affairs of the Senate Comm. on Foreign Relations, 106th Cong. 25 (2000) [hereinafter U.S. Libya Policy Hearing] (statement of John R. Bolton) (mistake to treat Pan Am 103 as a “diplomatic or judicial matter. . . . We should have followed President Reagan’s example in the wake of the La Belle disco bombing.”). Bolton was later to become one of the primary U.S. negotiators with Libya on the implementation of its disarmament pledges.

13 Joint U.S.–UK Declaration (Nov. 27, 1991): Statement Issued by the British Government, UN Doc. A/46/826–S/23307, Annex III (1991); Statement Issued by the Government of the United States, UN Doc. A/46/827–S/23308, annex (1991).

14 Declaration of the United States, France and Great Britain on Terrorism (Dec. 20, 1991), UN Doc. A/46/828–S/23309, annex (1991).

15 Communiqué from the Presidency of the French Republic and the Ministry of Foreign Affairs (Dec. 20, 1991), UN Doc. A/46/825–S/23306, annex (calling upon Libya to produce evidence and documents, facilitate interviews with witnesses, and authorize its officials to respond to requests from the French examining magistrate); see notes 106–07 infra and corresponding text.

16 The United States, the United Kingdom, and France were forced to veto a Security Council resolution condemning the air strikes as a violation of the UN Charter. See Cumulative Digest, supra note 11, at 3406–07. Libya, however, was able to secure passage of a condemnatory resolution by the General Assembly. GA Res. 41/38 (Nov. 20, 1986) (condemning attack and affirming Libyan right to compensation); see also Mad, Dogs: The U.S. Raids on Libya (Mary, Kaldor & Paul, Anderson eds., 1986).Google Scholar

17 In the case of the LaBelle disco bombing, President Reagan claimed that the Libyan People’s Bureau in East Berlin had confirmed Libya’s role in the attack on the day it occurred; U.S. air strikes followed nine days later. See Address to the Nation on the United States Air Strike Against Libya, 1 Pub. Papers: Ronald Reagan 468 (Apr. 14, 1986).Google Scholar

18 The generally accepted purpose of self–defense under international law is deterrence rather than punishment. With the passage of time, it may be more difficult to cite incidents such as the Pan Am 103 bombing as grounds to use force to prevent a future attack. Yoram, Dinstein, War, Aggression, and Self–Defence 209–10 (4th ed. 2005)Google Scholar; cf. UN Charter Art. 51 (preserving right of self–defense “if an armed attack occurs against a Member of the United Nations”).

19 Address Before a Joint Session of Congress on the State of the Union, 1 Pub. Papers: George H. W. Bush 129 (Jan. 31, 1990).

20 See, e.g., Libya Under Qadhafi, supra note 3; Joseph, T. Stanik, El Dorado Canyon: Reagan’s Undeclared War With Qaddafi 24 (2003)Google Scholar (“By the early 1980s Qaddafi was providing funds, training, and logistical support to insurgent movements, opposition groups, and terrorist elements in more than thirty countries, from South America to the Philippines.”).

21 The Libya case was the first time the UN Security Council had imposed sanctions for support of “acts of terrorism. “ See Lori, F. Damrosch, The Permanent Five as Enforcers of Controls on Weapons of Mass Destruction: Building on the Iraq ‘Precedent’? 13 Eur. J. Int’l L. 305, 319 (2002)Google Scholar. Historically, the definition of “terrorism” has been controversial; for example, as to whether it encompasses furtherance of national liberation movements, resistance to occupation, or actions by military forces. These differences thus far have blocked the conclusion of a global convention on “terrorism” as such. Cf. U.S. Dep’t of State, Country Reports on Terrorism 2005, at 9 (2006) (for purposes of U.S. terrorism list, “terrorism” means “premeditated, politically motivated violence perpetrated against non–combatant targets by subnational groups or clandestine agents,” but this definition does not necessarily apply for other purposes).

22 The first resolution was nonbinding but expressed deep concern over the results of the U.S.–UK and French investigations and “urged” Libya to provide a “full and effective response” to the requests of the three governments. SC Res. 731, para. 3 (Jan. 21, 1992).

23 On March 31, 1992, the Council adopted Resolution 748, invoking its authority under Chapter VII of the UN Charter, to make its request in Resolution 731 binding on Libya and to decide, in paragraph 2, that “the Libyan Government must commit itself definitively to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism.” At the same time it imposed an aviation and arms embargo until Libya complied with these requirements. SC Res. 748, paras. 3–5 (Mar. 31, 1992).

24 SC Res. 883, para. 3 (Nov. 11, 1993). The freeze applied only to assets as of that date, not to assets derived from later sales of petroleum, although they were at risk of future Security Council action.

25 By 1998, the U.S. Department of State reported that Libya had not been implicated in any international terrorist acts for several years. U.S. Dep’t of State, Patterns of Global Terrorism: 1998, at 33 (1999)Google Scholar [hereinafter Patterns: 1998]; see Litwak, supra note 4, at 97.

26 John P. Grant, The Lockerbie Trial: A Documentary History 135, 141 (2004) (reprinting Libyan position paper of 1997 presented to UN members); see Lori, F. Damrosch, Enforcing International Law Through Non–Forcible Measures 138 (1997)Google Scholar (describing more relaxed evidentiary and procedural requirements in Security Council than in judicial proceeding).

27 On June 28, 2007, the Scottish Criminal Cases Review Commission authorized a further appeal by the convicted Libyan suspect. This appeal may extend the criminal proceedings in Scottish courts for a number of years, particularly if it results in a new trial. For the commission’s summary of the grounds for allowing the appeal, see News Release, Abdelbaset Ali Mohmed al Megrahi (June 28, 2007), available at <http://www.sccrc.org.uk/ViewFile.aspx?id=293=>.

28 See Grant, supra note 26, at 106–07 (reprinting application of Libya to ICJ reciting Libyan steps).

29 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature Sept. 23, 1971, 24 UST 564, 974 UNTS 177 [hereinafter Montreal Convention]. Libya did not bring a case against France, presumably because France was not pressing for the transfer of Libyan suspects in the UTA 772 bombing. In the end, France conducted its trial, including of Libyan officials, in absentia. See note 82 infra.

30 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 114 (Apr. 14) [hereinafter Lockerbie Order]. (ICJ documents cited in this article are available online at the Court’s Web site, <http://www.icj–cij.org=>.) Libya’s argument was largely based on the inclusion in the Montreal Convention of a prosecute–or–extradite clause that obliges a party to respond favorably to an extradition request for a suspect found on its territory in the event it does not “submit the case to its competent authorities for the purpose of prosecution.” Montreal Convention, supra note 29, Art. 7. Similar clauses are found in numerous other antiterrorism conventions. E.g., International Convention for the Suppression of Terrorist Bombings, Art. 8, opened for signature Dec. 15, 1997, 2149 UNTS 284; International Convention for the Suppression of Acts of Nuclear Terrorism, GA Res. 59/290, Art. 11 (Apr. 13, 2005), opened for signature Sept. 14, 2005. (For the major global counterterrorism conventions, see UN Treaty Collection, Conventions on Terrorism (Oct. 6, 2005), at <http://untreaty.un.org/English/Terrorism.asp=.) Libya’s argument required the ICJ to find that the Pan Am 103 incident was a crime covered by the Convention, and that the Convention establishes a priority among parties that have overlapping claims to jurisdiction in favor of the country in which the suspect is present. Libya was also claiming a right to the evidence collected by the United States and the United Kingdom pursuant to Article 11 of the Montreal Convention, supra (“Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences.”).

31 Lockerbie Order, supra note 30, at 118, para. 7.

32 Shabtai, Rosenne, Provisional Measures In International Law: The International Court of Justice and The International Tribunal For The Law of The Sea 219 (2005).Google Scholar

33 Resolution 748 was adopted on March 31, 1992. See supra note 23.

34 Lockerbie Order, supra note 30, at 126, para. 39.

35 See UN Charter Art. 103.

36 Lockerbie Order, supra note 30, at 126, para. 40.

37 Id. at 126–27, paras. 42–44, 46. At the time, the ICJ had not yet ruled on whether its provisional measures are legally binding. In the LaGrandcase, also involving the United States, the Court later decided that provisional measures could be binding. LaGrand (Ger. v. U.S.), 2001 ICJ Rep. 466, 506, para. 109 (June 27). Had it accepted Libya’s request, the Court might have faced the challenge of shaping interim measures that would not result in the anomaly of directing the United States (and the United Kingdom) to violate Security Council Resolution 748, while the rest of the UN membership would remain bound since the Court’s ruling would not apply to them. See José, E. Alvarez,Judging the Security Council, 90 AJIL 1, 4–7 (1996).Google Scholar

38 Lockerbie Order,supra note 30, at 140–41 (Shahabuddeen, J., sep. op.) (conflict is not between Court and Security Council but between Libya’s obligations under Security Council decision and any obligations it may have under the Montreal Convention);id. at 145, para. 7 (Bedjaoui, J., dissenting) (“grey area” in which powers of Security Council and ICJ overlap); see, e.g., Geoffrey, R. Watson,Constitutionalism,Judicial Review, and the World Court, 34 Harv. Int’l L.J. 1, 2–3 (1993)Google Scholar (noting that the “majority opinion thus averted a potential constitutional confrontation between two organs of the United Nations, but the concurring and dissenting opinions suggest that such a confrontation is possible in the future”).

39 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In Marhury, the Supreme Court resolved that under the U.S. Constitution the Supreme Court’s interpretation of the Constitution prevails over that of the other branches of government, thus opening the way to judicial nullification of executive action and legislation. Whether the ICJ should play a similar role on the international plane in reviewing Security Council action is sharply disputed. Compare Thomas, M. Franck, The “Powers of Appreciation “: Who Is the Ultimate Guardian of UN Legality? 86 AJIL 519 (1992)Google Scholar (favorable), with W. Michael, Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83 (1993)Google Scholar (critical). See also Alvarez, supra note 37 (both sides—”legalists” and “realists”—wrongly assume there is a single question with a single answer).

40 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Preliminary Objections, 1998 ICJ Rep. 115, 129–31, paras. 39–44 (Feb. 27).

41 See note 109 infra.

42 See UN Docs. S/1994/373, annex; S/1995/834, annex; S/l 997/273, annex; S/1997/497, annex; S/1997/529, annex (conveying resolutions and statements made by the League of Arab States and the Organization of African Unity). Colonel Qaddafi’s son has written that the Court’s favorable jurisdictional ruling was particularly helpful in Libya’s campaign to secure supportive resolutions by the Organization of African Unity (OAU), the Non– Aligned Movement, and the Arab League. See Saif, Aleslam al–Qadhafi, Libyan–American Relations, Middle E. Pol’y, Spring 2003, at 35,40.Google Scholar

43 Grant, supra note 26, at 138 (“Libya offered to resort to the International Court of Justice to ascertain the veracity of the accusations leveled against the two Libyan suspects.”).

44 The ICJ is available only to resolve interstate disputes or to render advisory opinions at the request of specified international organizations. ICJ Statute Arts. 34, 36, 65.

45 The United States might have argued, for example, that Libya had failed to carry out Article 10 of the Montreal Convention, supra note 29, which requires parties to take “all practicable measures for the purpose of preventing the offences” covered by the Convention. In addition to seeking compensation for this breach, the United States might have argued that Libya’s complicity deprived it of the option of asserting jurisdiction over the suspects.

46 Under the UN Charter, the Security Council is empowered to enforce binding decisions of the ICJ. UN Charter Art. 94.

47 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 17, para. 10 (June 27) (U.S. withdrawal letter). The United States claimed that the Court lacked jurisdiction and that the case was inadmissible, depriving the Court of the competence to adjudicate, notwithstanding its ruling to the contrary. See id., Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26)Google ScholarPubMed; Marian Nash, Leich, Contemporary Practice of the United States, 79 AJIL 438 (1985)Google Scholar.

48 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24) (deciding that Iran had an obligation to secure the immediate release of the American staff). When Iran failed to comply, the United States was unable to obtain Security Council action to enforce the judgment.See Robert, Carswell, Economic Sanctions and the Iran Experience,Foreign Aff., Winter 1981/1982, at 247.Google Scholar

49 In Resolution 748, supra note 23, the Security Council found that Libya’s failure to demonstrate its renunciation of terrorism constituted a general threat to international peace and security and decided that the Libyan government must cease all forms of terrorist action and assistance to terrorist groups, a demand that covered Libya’s activities around the globe.

50 The Court’s rules required that a counterclaim be filed by the time of the U.S. merits memorial. See ICJ, Rules of Court, as amended Sept. 29, 2005, Rule 80. At that point the Court had still not definitively resolved the relationship between claims under the Montreal Convention and the Security Council’s Chapter VII resolutions. See note 40 supra and corresponding text. A U.S. counterclaim urging application of the Convention notwithstanding the Council’s decisions could therefore have created difficulties in contesting the right of Libya to similar consideration of its Convention claims. The U.S. posture contrasted with the U.S. decision to file counterclaims in a later ICJ case brought by Iran—the Oil Platforms case—where there were no competing Security Council resolutions. See Pieter H. F., Bekker, Case Report: Oil Platforms (Iran v. United States), 98 AJIL 550, 550–58 (2004)Google Scholar (procedural history and decision); Sean, D. Murphy, Contemporary Practice of the United States, id. at 597–601 Google Scholar (U.S. government critique of decision).

51 In the Security Council, the United States and the United Kingdom limited their presentation of evidence to their two indictments. In an ICJ proceeding, far more extensive disclosures might have been required to persuade the Court that the suspects had acted at Libya’s behest, which was not at issue in the criminal cases. But see note 79 infra (evidence of Libyan role). Although the ICJ has some fact–finding capabilities, its record of adjudicating complex historical events has been subject to pointed criticism. See Shabtai, Rosenne, Lessons of the Past and Needs of the Future, in Increasing The Effectiveness of the International Court of Justice 466, 489–90 (Connie, Peck & Roy S., Lee eds., 1997)Google Scholar (listing deficiencies in ICJ’s fact–finding capabilities).

52 While some of the current global counterterrorism conventions expressly exclude military activities, see, e.g., International Convention for the Suppression of Acts of Nuclear Terrorism, supra note 30, Art. 4(2); International Convention for the Suppression of Terrorist Bombings, supra note 30, Art. 19; International Convention Against the Taking of Hostages, Art. 12, opened for signature Dec. 17, 1979, TIAS No. 11,081, 1316 UNTS 205, others, like the Montreal Convention, do not, see, e.g.. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, opened for signature Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167. In the Iran Aerial Incident case in the ICJ, before it was settled the United States argued that the Montreal Convention does not “address the actions of States against civil aircraft, and in particular clearly does not apply to the actions of a State’s armed forces engaged in armed conflict.” Preliminary Objections Submitted by the United States of America, Aerial Incident of 3 July 1988 (Iran v. U.S.), 2 ICJ Pleadings 3, 167 (Mar. 4, 1991).

53 The State Department closed the U.S. embassy in Tripoli in 1980 and required Libya to close its mission in the United States the following year. By 1986, the executive branch had established a comprehensive ban on trade and financial transactions with Libya under the authority of the International Economic Emergency Policy Act. See Exec. Order No. 12,543, 51 Fed. Reg. 875 (Jan. 9, 1986), reprinted in 50 U.S.C. §1701 note (repealed 2006) (embargo on trade and financial transactions); Exec. Order No. 12, 544, 51 Fed. Reg. 1235 (Jan. 10, 1986), reprinted in 50 U.S.C. §1701 note (repealed 2006) (blocking Libyan assets); Exec. Order No. 12, 538, 50 Fed. Reg. 47, 527 (Nov. 19, 1985), reprinted in 19 U.S.C. §1862 note (repealed 2006) (ban on oil imports).

54 When the terrorism list was created in 1979, the consequence was limited to restrictions on certain sensitive exports. Over time this was supplemented by prohibitions on arms exports, see Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No. 99–399, sec. 509(a), 100 Stat. 853, 874, and foreign assistance, see Antiterrorism and Arms Export Amendments Act of 1989, Pub. L. No. 101–222, 103 Stat. 1892.

55 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, sec. 221, 110 Stat. 1214, 1241 (amending 28 U.S.C. §1605(a)) [hereinafter AEDPA]. The amendment had two principal effects on state sponsors of terrorism. Immunity was no longer available for acts of torture, extrajudicial killing, aircraft sabotage, hostage taking, and related material support, even if the actions occurred abroad, 22 U.S.C. §1605(a)(7). Previously, Pan Am 103–related cases against Libya had been dismissed because the aircraft’s destruction occurred outside the United States. Compare Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d239 (2dCir. 1996) (dismissing), cert, denied, 520 U.S. 1204 (1997), with Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998) (upholding jurisdiction under amended Act). Second, under the amendment, commercial assets of state sponsors of terrorism could be attached and executed upon to satisfy judgments, even if the assets had no connection to the underlying claim, see 22 U.S.C. §1610(a)(7).

56 Remarks on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 1 Pub. Papers: William J. Clinton 628–30 (Apr. 24, 1996).Google Scholar

57 E.g., sec. 326 of AEDPA, supra note 55, adding sec. 620H to Foreign Assistance Act of 1961, as amended [hereinafter FAA], 22 U.S.C. §151.

58 Sec. 325 of aedpa, supra note 55, adding sec. 620G to FAA.

59 See, e.g., Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L. No. 105–118, sec. 582, 111 Stat. 2386, 2435 (1997).

60 Iran and Libya Sanctions Act of 1996, Pub. L. No. 104–172,110 Stat. 1541 (codified at 50U.S.C.§1701 note) [hereinafter ILSA]; see also infra note 62.

61 The statute was originally aimed only at Iran, but was expanded in the Senate without debate to cover Libya as well. See 142 Cong. Rec. S7917 (daily ed. July 16, 1996); Litwak, supra note 4, at 68.

62 ILSA, supra note 60, sec. 5(b)(2), 110 Stat, at 1543. In 2001 the investment threshold triggering sanctions was reduced to $20 million for Libya, to match that of Iran. ILSA Extension Act of 2001, Pub. L. No. 107–24, sec. 2, 115 Stat. 199, 199. In 2006 the Act was transformed into the Iran Freedom Support Act, and all references to Libya were removed. Pub. L. No. 109–293, 120 Stat. 1347.

63 ILSA also imposed sanctions on companies violating UN sanctions on Libya. ILSA, supra note 60, sec. 5(b)(1), 110 Stat, at 1543.

64 The United States has stringent legislation prohibiting cooperation with the Arab League’s secondary boycott of Israel and imposes sanctions on foreign countries that enforce it. See, e.g., Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103–236, sec. 564, 108 Stat. 382, 484 (1994), as amended by Act of Oct. 25, 1994, Pub. L. No. 103–415, sec. 1(l), 108 Stat. 4299, 4301 (codified as amended at 22 U.S.C. §2751 note (2000)). U.S. legislation to isolate Cuba, however, has some features akin to a secondary boycott. See Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, Pub. L. No. 104–114,110 Stat. 785 (codified at 22 U.S.C. §6021 (2000)) (especially titles III and IV); Cuban Democracy Act, Pub. L.No. 102–484, sec. 1704, 106 Stat. 2576 (1992) (codified at 22 U.S.C. §6003 (2000)).

65 Litwak, supra note 4, at 68; see European Council Regulation 2271/96, Art. 5, 1996 O.J. (L 309) 1 (prohibiting compliance by European persons with ILSA “extraterritorial” requirements).

66 See Pan Am Flight 103 and U. S. Foreign Policy: Hearing Before the Subcomm. on International Security, International Organization and Human Rights of the House Comm. on Foreign Affairs, 103d Cong. 8–9 (1994) (testimony of Barbara K. Bodine, acting coordinator for counterterrorism, U.S. Dep’t of State).

67 Albright, supra note 3, at 330; U.S. Libya Policy Hearing, supra note 12, at 4 (testimony of Ronald Neumann, deputy assistant secretary, U.S. Dep’t of State) (little support to upgrade or even maintain UN sanctions); see also Jaleh, Dashti-Gibson & Richard, W. Conroy, Taming Terrorism: Sanctions Against Libya, Sudan, and Afghanistan, in The Sanctions Decade: Assessing UN Strategies in the 1990S, at 107, 118 (David, Cortright & George, A. Lopez eds., 2000)Google Scholar (OAU decision to defy the flight ban “jolted” the United States and the United Kingdom into offering compromise).

68 The 1997 Libyan position paper, see Grant, supra note 26, at 139, mentioned the idea of a “trial of the two suspects by Scottish judges, at the seat of the International Court of Justice, under Scottish law.”

69 The State Department legal adviser who participated in the negotiations on the trial arrangements notes that a U.S. trial was ruled out because of likely international objections, particularly to the death penalty. See Andrews, supra note 10, at 312.

70 The Netherlands required an agreement with the United Kingdom, specifying use of their bilateral extradition agreement for the handover of the suspects to the Scottish court, as well as provisions on the jurisdiction of the court and its privileges and immunities. Andrews, supra note 10, at 315; Agreement Concerning a Scottish Trial in the Netherlands, Neth.–UK, Sept. 18, 1998, 38 ILM 926 (1999). The Netherlands also needed a binding UN Security Council resolution to insulate the Scottish court on its territory from Dutch legal process. See SC Res. 1192, para. 7 (Aug. 27, 1998).

71 An order in council revising Scottish procedures to permit a bench trial abroad before three judges with a right of appeal to a panel of five judges was enacted in September 1998. Grant, supra note 26, at 163–70.

72 SC Res. 1192, supra note 70, para. 8. The Security Council had already expressed its intention to consider this in an earlier resolution. SC Res. 883, supra note 24, para. 16.

73 Resolution 1192, supra note 70, paragraph 8, reaffirmed paragraph 16 of Resolution 883, supra note 24, which expressed the Council’s resolve to terminate the suspension after ninety days if Libya had not complied with the remaining provisions of Resolutions 748 and 883. In the event, sanctions were not reimposed, although Libya did not meet the remaining requirements for more than three years. See SC Res. 1506 (Sept. 12, 2003).

74 Albright, supra note 3, at 330 (importance of retaining at least a “cloud over Libya” while other demands remained unfulfilled).

75 See UN Doc. S/1998/795(U.S.–UK letter to UN secretary–general, Aug. 24, 1998), reprinted in Grant, supra note 26, at 144.

76 Libya also sought and received clarifications and assurances, including that “the two persons will not be used to undermine the Libyan regime.” Grant, supra note 26, at 170 (reprinting secretary–general’s letter of Feb. 1999). This was probably a reference to an ostensible Libyan concern that the suspects would be pressured or induced to implicate other Libyan officials falsely.

77 Andrews, supra note 10, at 317. In conformity with its historic position that its constitution barred extradition of its nationals, Libya maintained that the suspects had voluntarily accompanied the UN legal counsel to The Hague on a UN aircraft. See generally UN Doc. S/1999/378 (secretary–general’s report to Security Council on arrival of suspects), reprinted in Grant, supra note 26, at 171.

78 Her Majesty’s Advocate v. Al Megrahi (High Ct. Judiciary at Camp Zeist Jan. 31, 2001), 40 ILM 582 (2001), reprinted in Grant, supra note 26, at 231; see also Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 405–07(2001)Google Scholar. For a critical summary of the court’s reasoning by a lawyer associated with the defense, see Julian, Knowles, The Lockerbie Judgments: A Short Analysis, 36 Case W. Res. J. Int’l L. 473 (2004).Google Scholar

79 “The clear inference which we draw from this evidence is that the conception, planning and execution of the plot which led to the planting of the explosive device was of Libyan origin.” Al Megrahi, supra note 78, 40 ILM at 610, para. [82]. The court found no evidence to support involvement of other terrorist groups on whom the investigation had originally focused. Id.

80 The court recommended that Megrahi serve at least twenty years before being considered for release. Subsequently, when the requirement of a determinate sentence under the European Convention on Human Rights was applied to Scotland, Megrahi was sentenced to a minimum of twenty–seven years. Grant, supra note 26, at 225.

81 UN Security Council Resolution 1192 invited the secretary–general to send international observers to the trial. SC Res. 1192, supra note 70, para. 6. He appointed five people for that purpose on April 26, 2000, see UN Doc. S/2000/349. One observer on his own initiative—Dr. Hans Kochler, president of the International Progress Organization—prepared a critical report on both the trial, reprinted in Grant, supra note 26, at 280, and the appeal, id. at 434.

82 Two other criminal proceedings for acts of international terrorism during die same period also implicated Libya: in 1999 a French court convicted six Libyan intelligence agents in absentia for placing a bomb on board the 1989 UTA 772 flight, see U.S. Dep’t of State, Patterns: 1998, supra note 25, at 33; and in 2001 a Berlin regional court found Libyan officials guilty of helping to orchestrate the 1986 attack on the LaBelle disco, U.S. Dep’t of State, Patterns of Global Terrorism: 2001, at 35–36 (2002)Google Scholar, a verdict subsequently affirmed on appeal, id.: 2003, at 91 (2004).

83 The United States and the United Kingdom would presumably have tried to counter that the acquittals were attributable to such factors as the difficult logistics of a third–country trial after ten years, Libya’s failure to cooperate more fully in the investigation, and the exacting evidentiary and proof standards of a criminal trial.

84 In November 2002, the Security Council found that Iraq was in material breach of its obligations under the Gulf war cease–fire resolutions for not cooperating with international inspections and gave it a “final opportunity” to comply. SC Res. 1441, para. 2 (Nov. 8, 2002). Subsequently, U.S. secretary of state Colin Powell presented selected pieces of U.S.–acquired intelligence in an effort to persuade the Council that Iraq was hiding ongoing WMD programs. The Council, however, was unable to agree on a further resolution, and the United States with a small number of allies invaded Iraq in March, invoking authority under the Security Council’s 1990 use–of–force resolution, SC Res. 678, para. 2 (Nov. 29, 1990).See William, H. Taft IV & Todd, F. Buchwald, Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar. Subsequently, U.S. inspectors, like their international predecessors, were unable to confirm U.S. and UK preinvasion claims of a resumed Iraqi WMD program. David, E. Sanger, Arms Move to Syria ‘Unlikely,’ Report Says, N.Y. Times, Apr. 26, 2005, at A10.Google Scholar

85 The French government had already advised the UN secretary–general that its separate demand for cooperation in the UTA 772 investigation “had been met.” UN Doc. S/1999/378, supra note 77, at 2, Grant, supra note 26, at 172.

86 For example, ILSA, supra note 60, did not permit the termination of its provisions on Libya until the president certified to Congress that Libya had fulfilled the requirements of the UN resolutions. See note 129 infra.

87 SC Res. 1373, pmbl. (Sept. 28, 2001).

88 See, for example, Scott, Anderson, The Makeover, N.Y. Times, Jan. 19, 2003, §6 (Magazine), at 29 Google Scholar:

89 UN Doc. S/2003/818 (Aug. 15, 2003).

90 Libya is now a party to all the major conventions. See supra note 30.

91 Hartford Fire Ins. Co. v. Socialist People’s Libyan Arab Jamahiriya, Civ. No. 98–3096 (TFH), 1999 U.S. Dist. lexis 15035 (D.D.C. Sept. 22, 1999).

92 The claims of the hull insurer and the trustee in bankruptcy were consolidated in a single action brought by Equitas, a subsidiary of Lloyd’s of London, in the Scottish Court of Session in 2003. See Norman, Silvester, Lockerbie Bomber and Libya Sued by Insurers for Bust US Airline Pan Am, Sunday Mail (Scot.), Nov. 30, 2003 Google Scholar, available in 2003 WL 9416555. The parties reached a settlement on February 18, 2005, which was approved by the bankruptcy judge a month later. See Vinnee, Tong, In Its Last Act, Pan Am Ex–employees Get Paid, 15 Years Late, AP, Sept. 21, 2006.Google Scholar

93 The Foreign Sovereign Immunities Act, as amended, permitted suit only if the victim or claimant was an American citizen. See 28 U.S.C. § 1605(a)(7) (2000).

94 The one estate representative who declined to participate continued to litigate against Libya. See Cummock v. Socialist People’s Libyan Arab Jamahiriya, Civ. No. 96–1029 (CKK) (D.D.C. dismissed with prejudice June 25, 2007).

95 Executive branch officials had originally suggested that the government might set the compensation figure, but that policy changed when the Pan Am 103 families objected. See U.S. Libya Policy Hearing, supra note. 12, at 18–19 (testimony of Ronald Neumann, deputy assistant secretary, U.S. Dep’t of State). Libya may also have seen advantages to approaching compensation through discussions with the private claimants because it delayed the U.S. legal proceedings, including discovery demands. Another possibility is that Libya hoped to avoid accepting responsibility by portraying an out–of–court settlement as the result of efforts by Libyans in the private sector to hasten the lifting of economic sanctions.

96 As of this writing, the settlement documents remain under court seal, but they have been widely reported in the press. See, e.g., Bradley, Graham, Libya Says It Needn’t Finish Payments to Flight 103 Victims’ Families, Wash. Post, June 27, 2006, at A17 Google Scholar (describing parties’ conflicting interpretations of the settlement).

97 To make this clear, the linkage between compensation and the lifting of sanctions was cited by the administration as one reason for its abstention on the Security Council resolution lifting UN sanctions. See Explanation of Vote, USUN Press Release No. 134 (03) (Sept. 12, 2003) (U.S. deputy permanent representative to the United Nations, Amb. James B. Cunningham), available at <http://www.un.int/usa/03print_133.htm=;.

98 Letter of July 22, 2002, from William J. Burns, assistant secretary for Near Eastern affairs, U.S. Department of State, to James P. Kreindler (chair of Pan Am 103 steering committee of family lawyers) (on file with author).

99 UN Doc. S/2003/818, supra note 89, at 1.

100 Megrahi’s appeal was denied on March 14, 2002. Grant, supra note 26, at 298.

101 See, e.g., Solomon, supra note 5, at 56 (“Libya long denied any wrongdoing but eventually accepted that it had to admit to it, as a pragmatic matter, though Libyan officials see it as a forced confession. Qaddafi never accepted personal guilt.”). Libya’s acceptance of responsibility for the actions of its officials was consistent with the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001) (Articles 5–7 attribute responsibility to a state for acts by those exercising governmental authority or who act under the instructions or direction or control of that state).

102 UN Doc. S/2003/818, supra note 89, at 1.

103 Id.

104 UN Doc. S/2003/819 (Aug. 15, 2003).

105 Libya arranged for $2.7 billion to be deposited at the Bank for International Settlements in Basel, Switzerland, which served as the escrow agent.See Lynette, Clemetson,Lockerbie Victims’Relatives See Glimmer of Hope, N.Y. Times, Aug. 16, 2003, at A6.Google Scholar

106 Unlike the United States and the United Kingdom, France had not presented a demand for compensation to the UN Security Council, and it had already informed the United Nations that its demands underlying the Security Council resolutions had been met. See note 85 supra. Moreover, Libya had honored the outstanding French court judgments against Libyan officials by paying some $35 million. However, in light of the larger amounts of the Lockerbie settlement, France apparently decided that it was indefensible domestically for it to allow the lifting of sanctions without insisting on additional compensation. See Sean, D. Murphy, Contemporary Practice of the United States, 97 AJIL 990–91 (2003).Google Scholar

107 Eventually, in January 2004, the Qaddafi Foundation, a charitable association managed by one of Colonel Qaddafi’s sons, agreed to provide $1 million for each UTA death ($171 million). Joint Franco–Libyan Declaration Signed by Dominique de Villepin, Minister of Foreign Affairs, and his Libyan Opposite Number, Abdel Rahman Muhammad Shalgam (Jan. 9,2004), available at <http://www.ambafrance–us.org/printfriendly/statemnts2004/francolibyan_010904_pf.asp=; U.S. Dep’t of State, Country Reports on Terrorism: 2004, at 89 (2005)Google Scholar. The families of the seven U.S. passengers chose not to participate in this arrangement and instead continued to pursue their legal remedies against Libya in U.S. court. See Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F.Supp.2d 54 (D.D.C. 2003), appeal dismissed, 112 F. App’x 756 (D.C. Cir. 2004).

108 SC Res. 1506, supra note 73. The United States abstained on the resolution.

109 On September 9, 2003, the United States, the United Kingdom, and Libyan agents informed the Court that they had agreed to discontinue the proceedings and wished them to be removed from the Court’s list of active cases. The Court issued an order for that purpose the following day. See ICJ Press Release 2003/29 (Sept. 10, 2003).

110 The United States and the United Kingdom had demanded that Libya disclose all it knew about the crime and make available the remaining timers Libya was believed to have acquired for carrying out attacks such as Pan Am 103. See Joint U.S.–UK Declaration, supra note 13.

111 Explanation of Vote, supra note 97. The reference to Libya’s “irresponsible behavior in Africa” presumably alluded to its support for groups threatening the stability of neighboring states. See, e.g., Colter, Paulson, Compliance with Final Judgments of the International Court of Justice Since 1987, 98 AJIL 434, 439–43 (2004)Google Scholar (allegations of Libyan support for Chadian opposition groups in the Aouzou Strip notwithstanding ICJ decision in favor of Chad’s claim over the territory).

112 George, W. Bush, Remarks on the Decision by Colonel Muammar Abu Minyar al–Qadhafi of Libya to Disclose and Dismantle Weapons of Mass Destruction Programs, 39 Weekly Comp. Pres. Doc. 1835, 1836 (Dec. 29, 2003)Google Scholar (“As the Libyan Government takes these essential steps and demonstrates its seriousness, its good faith will be returned. Libya can regain a secure and respected place among the nations, and, over time, achieve far better relations with the United States.”); Sean D. Murphy, Contemporary Practice of the United States, 98 AJIL 195–97 (2004).

113 See Ron, Suskind, The Tyrant Who Came in from the Cold, Wash. Monthly, Oct. 2006, at 19, 23 Google Scholar (a shipment of centrifuge equipment was intercepted en route from Dubai to Libya). It has been reported that in late 2003 the United States also showed Libya intercepted communications between the head of Libya’s nuclear weapons program and its illicit nuclear supplier, A. Q. Khan., Judith Miller, How Gadhafi Lost His Groove: The Complex Surrender of Libya’s WMD, Wall St. Opinion J., May 16, 2006, at <http://www.opinionjournal.com/editorial/feature.html?id=110008381=Google Scholar.

114 As a party to the Non–proliferation Treaty, Libya was already obligated not to seek to develop nuclear weapons, as well as to submit its nuclear program to safeguards administered by the International Atomic Energy Agency. Treaty on the Non–proliferation of Nuclear Weapons, Arts. II, III, July 1, 1968, 21 UST 483, 729 UNTS 161.

115 Previously, Libya had denied reports that it was using the Rapta pharmaceutical complex for chemical weapons development. See Saif al–Qadhafi, supra note 42, at 43; Weymouth, supra note 5 (quoting Colonel Qaddafi).

116 The Missile Technology Control Regime (MTCR) is a set of parallel commitments by participating members to exercise restraint in exports to nonmembers that might contribute to the acquisition of defined missile capabilities. See The Missile Technology Control Regime, at <http://www.mtcr.info/index.html=. Libya was not a member, nor was it suspected of exporting missile technology. However, Libya stated its willingness to restrict its own missile development activities to the limits embodied in the MTCR.

117 Libya was already party to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, 94 LNTS 65, and to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163.

118 This cooperative endeavor stood in stark contrast to the U.S.–UK response to Iraq’s suspected WMD program only months before. See supra note 84.

119 On nuclear issues, Libya confirmed its intention, on February 18, 2004, to conclude an additional protocol to its safeguards agreement and its intention to act as if it had entered into force on December 29, 2003. IAEA, Annual Report for 2004, at 9, 64–65 [hereinafter IAEA Report], available at <http://www.iaea.org/Publications/Reports/Anrep2004/anrep2004_full.pdf=. On January 6, 2004, Libya ratified the Comprehensive Nuclear Test Ban Treaty, opened for signature Sept. 24, 1996, GA Res. 50/245 (Sept. 10, 1996), available at <http://www.ctbto.org/=. On January 6, 2004, Libya also acceded to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, S. Treaty Doc . No . 103–21 (1993), 1974 UNTS 45.

120 See IAEA Report, supra note 119, at 64–65; Report of the OPCW in 2004, Doc. C–10/4, at 15 (2005).

121 See U. S. Relations with Libya: Hearing Before the Senate Comm. on Foreign Relations, 108th Cong. 8–16 (2004) (testimony of Paula A. DeSutter, assistant secretary for verification and compliance, U.S. Dep’t of State) [hereinafter 2004 Senate Hearing].

122 Id. at 9.

123 Vice President Cheney reportedly subscribes to this view. See Eben, Kaplan, How Libya Got off the List, Council on Foreign Relations Backgrounder, updated July 25, 2007, available at <http://www.cfr.org/publication/10855/=Google Scholar. Another former Bush (and Clinton) administration official who worked on the issue disagrees, noting that Libya had signaled its willingness to disarm in 2001, only to be told that it had to settle the Lockerbie case first. Flynt, Leverett, Op–Ed, Why Libya Gave up on the Bomb, N.Y. Times, Jan. 23, 2004, at A23 Google Scholar (former senior director of the National Security Council and State Department Policy Planning Office member).

124 Kaplan, supra note 123, at 2–3 (views of Martin Indyk, a Clinton administration official who opened direct talks with Libya in 1999); see Dashti–Gibson & Conroy, supra note 67, at 109 (although sanctions had “modest impacts” on the economy, die hardship that did result along with diplomatic isolation motivated Libya’s desire for relief).

125 See Miller, supra note 113; Suskind, supra note 113, at 23 (attributing decision to Qaddafi’s desire to eliminate Libya’s isolation but only if he could “save face”); see also Dafna, Hochman, Rehabilitating a Rogue: Libya’s WMD Reversal and Lessons for U.S. Policy, Parameters (U.S. Army War College), Spring 2006, at 63 Google Scholar (attributing decision to five factors and concluding there is no clear formula for prescribing the rehabilitation of rogue states but that policy tools appropriate to each case must be determined).

126 In announcing the WMD breakthrough, President Bush said:

Bush, supra note 112, at 1836.

127 Pursuant to 22 U.S.C. §211a (2000), the secretary of state may prohibit use of U.S. passports for travel to countries if necessary to protect the health and safety of U.S. travelers. In February 2004, this restriction was terminated for travel to Libya. 69 Fed. Reg. 10, 806 (Mar. 8, 2004). U.S. travelers were also authorized to pay travel related expenses that were otherwise prohibited under the financial transaction restrictions on Libya. See Office of the Spokesman, U.S. Dep’t of State, Fact Sheet: Significant Events in U.S.–Libyan Rapprochement (May 15, 2006), available at <http://www.state.gov/r/pa/prs/ps/2006/66242.htm= [hereinafter Rapprochement].

128 Rapproachement, supra note 127. Diplomatic relations with Libya had never been formally broken despite the closure of diplomatic missions, but U.S. interests were represented only through the Belgian embassy. On June 24, 2004, the United States reopened a diplomatic mission in Tripoli denominated a “Liaison Office,” and on May 31, 2006, this office was upgraded to an embassy. See About the Embassy, at <http://libya.usembassy.gov/=.

129 ILSA provided that its provisions would no longer apply to Libya if the president certified that Libya “has fulfilled the requirements of” the UN sanctions resolutions. ILSA, supra note 60, sec. 8(b), 110 Stat, at 1546. The president submitted this certification to Congress on April 23, 2004. Presidential Determination 2004–30, Determination and Certification Under Section 8(b) of the Iran and Libya Sanctions Act, 69 Fed. Reg. 24,907 (May 5, 2004).

130 Dep’t of Treasury, Office of Foreign Assets Control, Recent OFAC Actions (Apr. 23, 2004), available at <http://www.treasury.gov/offices/enforcement/ofac/actions/2004.shtml=.

131 Exec. Order No. 13,357, 69 Fed. Reg. 56,665 (Sept. 22, 2004).

132 The release of the frozen assets opened the way for payment of over $1 billion to the Pan Am 103 families under their settlement with Libya. Rapprochement, supra note 127. See supra note 96 and corresponding text regarding the terms of the settlement. This action, however, deprived other claimants of potential assets under U.S. jurisdiction to enforce judgments they might obtain against Libya. To address this potential concern, the administration announced that, in connection with the unblocking of the assets, it had obtained Libya’s assurances that it had “a policy and practice of carrying out agreed settlements and responding in good faith to legal cases brought against it, including court judgments and arbitral awards.” Statement by the White House Press Secretary (Sept. 20, 2004), at <http://www.whitehouse.gov/news/releases/2004/09/=.

133 By executive and legislative action this initiative led to the restoration of foreign tax credits for U.S. businesses in Libya, see Presidential Determination 2005–12, 70 Fed. Reg. 1785 (Jan. 10, 2005) (waiving section 901 (j)(1) of the Internal Revenue Code with respect to Libya), authorization for Commodity Credit Corporation programs in Libya, see Presidential Directive 2004–49, 69 Fed. Reg. 58,035 (Sept. 29, 2004) (waiving section 908(a)(1) of the Trade Sanctions Reform and Export Enhancement Act of 2000, Pub. L. No. 106–387, tit. IX, 114 Stat. 1549A– 67, 1549A–70, with respect to Libya), and permission for the Export–Import Bank to begin supporting trade with Libya, see Presidential Directive 2006–11,71 Fed. Reg. 12,119 (Mar. 9, 2006) (waiving sec. 620A of the FAA, supra note 57, and making the finding required by sec. 113 in div. J of the Consolidated Appropriations Act of 2005, Pub. L. No. 108–447, 118 Stat. 3341, 3346, to terminate restrictions in appropriations legislation).

134 See Presidential Determination 2004–44, 69 Fed. Reg. 56,153 (Sept. 20, 2004) (waiving sanctions under sees. 101 and 102(b) of Arms Export Control Act notwithstanding nuclear enrichment and weapons–design–related imports, and making sec. 2(b)(4) of Export–Import Bank Act inapplicable to Libya despite such imports); see also U.S. Dep’t of State, Pub. Notice 4856, 69 Fed. Reg. 60,450 (Oct. 8, 2004) (determination that Libya had “materially violated” nuclear safeguards agreement).

135 The secretary of state also determined that Libya should not be subject to separate sanctions as a country “not fully cooperating with U.S. antiterrorism efforts” under section 40A of the Arms Export Control Act. U.S. Dep’t of State, Pub. Notice 5411, 71 Fed. Reg. 28,897 (May 18, 2006).

136 For example, an advertisement purchased by one of the Pan Am 103 family groups was headlined “President Bush Betrays Murdered Americans for Big Oil, Undermining the War on Terrorism,” and began with:

Wash. Post, June 26, 2006, at A14.

137 With respect to claimants against Libya, this concern was reflected in legislative initiatives to keep pressure on Libya to provide additional compensation. For example, a dispute arose between Libya and the Pan Am 103 families over whether a final $2 million payment would be due upon the rescission of Libya’s designation as a state sponsor of terrorism notwithstanding the expiration of the escrow account established by Libya. See supra note 96. The Senate passed a nonbinding resolution calling on the president not to accept diplomatic credentials from Libya unless it was working in good faith to resolve these differences. S. Res. 504, 109th Cong. (2006).

138 See, e.g., Guy, Dinmore, Neo–cons Question Bush’s Democratisation Strategy, Ft.Com (Fin. Times), May 29, 2006 Google Scholar (resumption of diplomatic relations with Libya viewed by neoconservative commentators as “final blow” to Bush’s freedom doctrine); Vance, Serchuk & Thomas, Donnelly, Beware the “Libyan Model, “in National Security Outlook (AEI Online, Washington, D.C.), Mar. 1, 2004, at 6 Google Scholar (“The core truth behind the Bush Doctrine is that the character of a regime matters as much, if not more, than its armaments.”)

139 See Miller, supra note 113 (“[S]ome critics of the Bush Administration now argue that Washington’s temporizing toward Libya has undermined its nonproliferation victory and has reinforced rogue–state conviction that disarmament will not get one far with Washington.”); Solomon, supra note 5, at 44, 58–59.

140 Public speculation on the delay also focused on reports that Libya had been involved in a suspected assassination plot against the Saudi crown prince in 2003. On June 30, 2004, an American Muslim activist Abdurahman Alamoudi pleaded guilty to violations of U.S. sanctions on Libya, and in connection with his plea agreement alleged that Libya had been directly involved in supporting the aborted plot. See U.S. Dep’t of Justice, Abdurahman Alamoudi Sentenced to Jail in Terrorism Financing Case (Oct. 15, 2004), at <http://www.usdoj.gov/opa/pr/2004/October/04_crm_698.htm=>>Google Scholar. By May 2006, after the crown prince had become king of Saudi Arabia and pardoned the accused conspirators, Libya and Saudi Arabia announced that the issue was resolved and restored normal diplomatic relations. See U.S. Dep’t of State, On–the–Record Briefing, Issues Related to United States Relations with Libya (May 15, 2006) (C. David, Welch, assistant secretary for Near Eastern affairs), at <http://www.state.gov/p/nea/rls/rm/2006/66268.htm=.Google Scholar

141 In this regard, it is noteworthy that Congress has turned increasingly to statutes that require the executive branch to designate countries publicly for failing to meet various U.S. foreign policy objectives, in some cases resulting in automatic sanctions as with the terrorism list. See FAA, supra note 57, sec. 490(h) (drug production and trafficking); Trafficking Victims Protection Act of 2000, Pub. L. No. 106–386, div. A, 114 Stat. 1464 (codified as amended at 22 U.S.C. §7101 note (2000 & Supp. 4 2004)) (trafficking in persons); International Religious Freedom Act of 1998, Pub. L. No. 105–292, 112 Stat. 2787 (codified as amended at 22 U.S.C. §6401 (2000 & Supp. 4 2004)) (religious discrimination or repression). See generally Litwak, supra note 4, at 9–12 (criticizing U.S. policy for responding to “rogue states” because of its equation of international relations with a moral struggle, failure to tailor responses to the circumstances of each country, the political difficulty it creates for removing sanctions once they are imposed, its tendency to put the United States at odds with key allies, and the false dichotomy it often creates between containment and engagement when an intermediate course is often more productive).

142 See, e.g., Dashti–Gibson & Conroy, supra note 67, at 120 (the greatest effect of the UN sanctions was to restrain Libya from further support for terrorism).

143 A standing international tribunal for prosecuting “terrorist” offenses does not yet exist, see Grant, supra note 26, at xxxi–xxxv, but the UN Security Council has established an ad hoc tribunal in connection with the assassination of former Lebanese prime minister Rank Hariri, see SC Res. 1757(May 30, 2007) (describing assassination as involving international terrorism and deciding, under Chapter VII, that the provisions of an agreement between the United Nations and Lebanon to establish the tribunal will enter into force notwithstanding a failure by Lebanon to ratify the agreement).

144 Moreover, efforts to prove the negative, that a country has ceased “all” support for international terrorism, are unlikely to yield crystal–clear results, even if U.S. legislation requires a clean record for only six months. See, e.g., supra note 140.

145 But see James, A. Baker III Et Al., The Iraq Study Group Report 37 (2006), available at <http://www.usip.org/isg/iraq_study_group_report/report/1206/index.html=Google Scholar (recommending direct engagement by the United States with Syria and Iran “much as it did successfully with Libya”).

146 See, e.g., Cuban Liberty and Democratic Solidarity (Libertad) Act, supra note 64; Iraq Liberation Act of 1998, Pub. L. No. 105–338, 112 Stat. 3178 (codified as amended at 22 U.S.C. §2151 note (2000 & Supp. 4 2004)).