1048
774 FEDERAL REPORTER, 3d SERIES
This second observation is key to the
Kims’ case. Congress enacted the terrorism exception expressly to bring state
sponsors of terrorism—including, at the
time, the DPRK—to account for their repressive practices. See H.R.Rep. No. 104–
383, at 62. Concerned with victims’ inability to obtain redress in terrorism cases,
Congress later amended the statute to
make it easier to attach a foreign State’s
property during litigation and to seize
those assets to satisfy a judgment. See 28
U.S.C. §§ 1605A(g), 1610. And the statute
has always authorized the courts to enter
default judgments against defendants who
refuse to appear. Id. § 1608(e). With
these provisions, Congress aimed to prevent state sponsors of terrorism—entities
particularly unlikely to submit to this
country’s laws—from escaping liability for
their sins.
Here, North Korea seeks to do exactly
that. The regime has made Reverend
Kim unavailable to testify on his own behalf, refused to appear in court and subject
itself to discovery, and is known to intimidate defectors and potential witnesses.
Indeed, the district court concluded, the
regime is so feared that ‘‘those individuals
who may know details about Reverend
Kim’s whereabouts and treatment TTT convey such information sparingly and anonymously,’’ if at all. Kim, 950 F.Supp.2d at
42; see also Decl. of Do Hee–Youn ¶ 2
(explaining that the identities of ‘‘individuals that have supplied TTT information concerning North Korean matters TTT are
kept confidential to ensure their safety
from potential retribution against them by
the North Korean government’’).
In these circumstances, requiring that
the Kims prove exactly what happened to
the Reverend and when would defeat the
Act’s very purpose: to ‘‘give American citizens an important economic and financial
weapon,’’ H.R.Rep. No. 104–383, at 62, to
‘‘compensat[e] the victims of terrorism,
and in so doing to punish foreign states
who have committed or sponsored such
acts and deter them from doing so in the
future.’’ Price, 294 F.3d at 88–89. This is
especially true in cases of forced disappearance, like this one, where direct evidence of subsequent torture and execution
will, by definition, almost always be unavailable, even though indirect evidence
may be overwhelming. Were we to demand more of plaintiffs like the Kims, few
suits like this could ever proceed, and state
sponsors of terrorism could effectively immunize themselves by killing their victims,
intimidating witnesses, and refusing to appear in court.
Fortunately for the Kims and for Congress’s objective, the Supreme Court has
‘‘recognize[d] very realistically’’ that courts
have the authority—indeed, we think, the
obligation—to ‘‘adjust [evidentiary requirements] to TTT differing situations.’’ Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.
1981) (citing McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973)). Consider, for instance, the long-established, common-law
rule of res ipsa loquitur, or, literally, ‘‘the
thing speaks for itself.’’ Under that doctrine, the courts have, without direct proof,
inferred negligence from the very nature
of events—say, from the fact that a surgery patient awoke from anesthesia to discover that a sponge had been left in her
gut. That sort of inference is justified in
part on the ground that ‘‘the court does
not know, and cannot find out, what actually happened in the individual case,’’ often
because the facts are known only to the
defendant. RESTATEMENT (THIRD) TORTS:
PHYSICAL AND EMOTIONAL HARM § 17 cmt. A,
at 184 (2005). This approach allows the
court to ‘‘encourag[e] the defendant to disclose relevant evidence,’’ id. at 193, and, if
the defendant is unable to do so, to reach
the common-sense conclusion ‘‘that it was