Ted has a new essay out by this title in AEI’s Liability Outlook series (Sept. 11). To quote from the conclusion:
One can debate the appropriate role for each of the three branches in the post-9/11 world in coordinating domestic and foreign policy in responding to terrorism. But one matter should be beyond debate. Individual litigants in individual cases should not be able to use the combination of civil liability rules and the power of the civil courts to interfere with larger national policy. Congress can disagree with the executive branch, but should do so through legislation, rather than abdicating its responsibilities to trial-lawyer proxies. Civil liability is a poor tool for deterring suicide bombers, and civil anti-terrorism laws are bound to have their greatest effect when used against innocent parties.
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Something that continues to worry me is that the head of the FBI is not a former agent or even an alalyst, rather he is an attorney. FBI agents at present now have an additional level of attorney oversight at each level leading to the term “Washington Post Test” before they can act on any possible terror case.
Excluding the lawyer from all terror policy, including removing those embedded in the military at the tactical level, is good for the lawyer profession.
If a major terror attack recurs, the lawyer will be scapegoated, with unforeseeable consequences.
Here’s why we need trial lawyers making foreign policy:
1) The people who make anti-terrorism policy should be those who are most American
2) Who is more American that trial lawyers?
3) Trial lawyers are the perfect candidates to make anti-terrorism policy
Alternate reality, indeed.
[…] “International human rights law” — what could sound more cuddly and humanitarian? Who could disapprove of such a thing? That’s one reason it’s so popular at almost every law school nowadays following years of generous support by the Ford Foundation, Soros, and other donors. In practice, as is now clear, it often tends to furnish a set of handy weapons for carrying on “lawfare” — warfare by means of courtroom action against one’s adversaries, particularly in the courts of third countries. (Anne Herzberg, “Lawfare against Israel”, WSJ, Nov. 5). For the closely related issue of laws empowering private attorneys and litigants to pursue foreign entities over alleged terrorist support whether or not such actions advance U.S. diplomatic goals, see Sept. 12, 2007. […]