On Dec. 21, 1988, Pan Am flight 103, a 747 bound from London to New York, exploded over Lockerbie, Scotland, killing all 259 people aboard and 11 on the ground. Until this year, it was the deadliest terror attack ever on American civilians. But the United States didn't declare "war" on terrorism--or on Syria and Iran, which were widely suspected of masterminding the operation, or on Libya, which almost certainly carried it out. Instead, the government treated it as a criminal case. The only people charged with the murders were two midlevel Libyan intelligence agents, who finally came to trial in the Netherlands last year. One was convicted; the other went free. For many of the families of the victims, the lack of a serious American response to the bombing of Pan Am 103 felt like a betrayal by their own government. Their demand to hold someone accountable for the murders led them to the radical step of suing Libya in American courts, setting a precedent for the use of legal remedies in the fight against terrorism. The families forged themselves into a powerful lobby, winning passage of a bill to strengthen airline security--which worked well enough, up until Sept. 11. Thus the attacks last month struck them doubly hard: as an evocation of their own never-ending loss, and a reminder that there are no final victories in the struggle against terrorism.
As they fell from the plane, the passengers fell out of their lives. In an instant they were transformed from living presences in the world to memories. Their children would grow up and their recollections of them would dim and waver. Their parents would grow old without them and, at the moment of their own deaths, cry out for them. People would have dreams of them, and even in their dreams, dread the pain of awakening to the world from which they had vanished. All that has gone on ever since, and will go on until the last person who loved them is dead.
On the darkest day of 1988, Suse Lowenstein was waiting for her husband to come home and drive with her to the airport, where they would meet their son Alexander, who was a senior at Syracuse University. Suse was a sculptor, and before Alexander had left for London, he had modeled for her. While she waited for her son to come home, Lowenstein worked on this sculpture. And then the phone rang. A friend had been watching the news and seen a plane burning in a field.
And now, 12 years later, you can see just how it feels when someone you love has been killed in a plane crash. Not long after the bombing, Lowenstein began sculpting herself as she was when she heard the news, hunched on the floor, hugging her knees to her chest. She mentioned this at a meeting of relatives of the Pan Am 103 victims and a woman there said she, too, would like to pose for a sculpture. The project grew into a piece Lowenstein called "Dark Elegy." It comprises more than 50 figures. Their faces are indistinct. They kneel, clutching at the air or cradling their heads. Someday, Lowenstein hopes, it will have a permanent home at the United Nations, where people from many countries can see it and ask themselves if there is anything in the world worth having, at the cost of so much pain.
From the beginning, there was a fundamental difference between family members and the government over the significance of the bombing. To the families it was obvious that an American citizen who was killed by terrorists was not just a casualty, but an unwitting martyr to his country. The example of the Americans held hostage by guerrillas in Beirut, who were gradually freed in the late 1980s and greeted as heroes on their return, was still fresh in the national memory, and the family members thought their sons and husbands deserved no less. Eleanor Hudson demanded a flag for her daughter Melina's coffin, reasoning that Melina had died because of her nationality. But overworked officials of the State Department had no precedent for these demands. "We were kind of taken aback by the requests for flags and drumrolls," said Michael Kraft, a senior adviser in the department's Office of Counter-Terrorism. "These were private citizens, except for the ones in the military. We didn't do that for civilians." No officials were on hand to lend a touch of dignity when the remains of the victims were returned to American soil, at a cargo warehouse in an obscure corner of John F. Kennedy Airport.
The families looked for solace from the White House, but the Reagan administration, ordinarily quick to defend American interests, was oddly reticent about the attack. Partly this was an accident of the calendar; Reagan was in his last month of office, and as soon as George Bush took over, the bombing became something that happened on someone else's watch. For almost a week after the crash, following a token expression of sympathy from spokesman Marlin Fitzwater, there was silence from the White House. Reagan did eventually take note of the Lockerbie bombing, promising on Dec. 28--in a statement issued to reporters as he prepared to fly to Palm Springs, Calif., for New Year's--"to make every effort we can to find out who was guilty of this savage and tragic thing." The New York Times relegated this statement to page 10, along with a less-than-ringing declaration from President-elect George Bush of his administration's intent to "punish [the bombers] firmly, decisively... if you could ever find them."
In 1992, Allan Gerson, an international lawyer and academic, wrote an op-ed article in The New York Times proposing that the United Nations create a claims commission to compensate the victims' families out of Libyan assets. The article was seen by Bruce Smith, a former Pan Am pilot whose wife, Ingrid, had been killed aboard Flight 103. Smith retained Gerson's firm of Hughes Hubbard & Reed to push the idea--paying legal bills himself, out of the retirement money he'd gotten when Pan Am went out of business.
Gerson wrote up his proposal and gave it to a senior State Department official, for consideration in President Bush's address to the U.N. General Assembly that fall. But someone in the White House nixed the idea, and it never made it into the speech.
"Well," Gerson said to Smith after Bush's speech, "the commission idea is not going to happen, at least not this year."
"What else do you have?" Smith asked.
There was one other thing. They could sue Libya for damages in an American court. Libya was a wealthy country, with assets frozen in the United States that could be used to pay a judgment. There was a strong case for a lawsuit on symbolic grounds. The evidence would be spread on the record for the world to see. And the judge would weigh it according to the standards of civil lawsuits, where cases are decided by a "preponderance of the evidence," not the much stricter criminal standard of guilt "beyond a reasonable doubt."
The practical problems, though, were daunting. How would he even get an American court to take jurisdiction, in the face of sovereign immunity--the doctrine, descended from the divine right of monarchs, that holds national governments above the law, unless they specifically consent to subject themselves to it.
Libya, as expected, raised the defense of sovereign immunity--and the United States filed a brief in support of Libya's position, because every government in the world, including the U.S., had an interest in supporting a system that protected it from lawsuits. Federal judges rejected the argument that a country that deliberately murders civilians as part of its foreign policy has forfeited its immunity from being sued. The only recourse was to change the law, which took until 1996, and the unexpected intervention of another national tragedy. As part of the antiterrorism legislation following the Oklahoma City bombing, the Foreign Sovereign Immunities Act was amended to permit lawsuits like the one Gerson sought to bring against Libya.
After the bill signing, Victoria Cummock--the widow of a businessman who had died aboard Pan Am 103, and a leader of the families' lobbying efforts--arranged a reception at a Washington hotel for the families of the victims and the people who had worked on the legislation. It was a glorious spring day and people spilled into the adjoining garden, chatting happily, toasting their achievement. They could have been a wedding party if someone walking down the street chanced to catch a glance at them--anything but the victims of the two greatest crimes against American citizens of the century. Then they went back to their hotel rooms for the night, and climbed into their beds, the wives without husbands, the parents bereft of children, and stared into the darkness and hoped not to dream.