Fowzi Badavi Nejad, the only survivor among six terrorists who seized the Iranian Embassy and 26 hostages in London 28 years ago, “has reportedly been assured he will not be deported back to his native Iran because of human rights laws, and will instead stay in Britain at taxpayers’ expense.” (Chris Irvine, “Iranian Embassy terrorist to be freed this month can claim benefits”, Daily Telegraph, Oct. 9).
Apparently not quite so pro bono as all that, reports the Washington Times: a Kuwait-based group backed by the government of that wealthy Arab state has kicked in nearly $4 million to the legal effort. Firms receiving Kuwaiti funds include Shearman & Sterling, Arnold & Porter and Pillsbury Winthrop. “The Kuwait-based group also has financed a public relations campaign run by Levick Strategic Communications in Washington” toward the goal of “due process for the detainees held at Guantanamo Bay”. (Jim McElhatton, “Kuwait helps pay detainees’ legal bills”, Jul. 25)(via Elefant).
It’s not just the U.S. civil-justice system that often winds up serving counterproductive ends, but also our criminal and national security legal systems. And just like with, e.g., our tort system, it sometimes seems like everyone knows this except us Americans.
Consider this, from the Times‘ detailed account of the interrogation of 9/11 planner Khalid Sheikh Mohammed:
Mohammed met his captors at first with cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer–the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef’s arrest in 1995.
Apparently, KSM was somehow privy to an advance copy of Boumediene. . .
Amid deep and growing divisions among Senate Democrats, Senate Majority Leader Harry M. Reid (D-Nev.) last night abruptly withdrew [the Foreign Intelligence Surveillance Act that would have also] granted the nation’s telecommunications companies retroactive immunity from lawsuits charging they had violated privacy rights.
(Jonathan Weisman and Paul Kane, “Telecom Immunity Issue Derails Spy Law Overhaul”, Washington Post, Dec. 18). Reid had previously promised to pass the bill this month, but a handful of Democratic senators, most notably Dodd and Kennedy, threatened to block the bill because of the immunity provision. Reid had the votes to pass it (a filibuster attempt failed 76-10), but chose not to. Earlier: Nov. 5 and Oct. 31.
Update: Were the government’s actions were illegal? Maybe, though reasonable minds can differ. But the question is different from the one of the dynamic consequences of finding private liability here. If corporations are held liable every time they agree to cooperate with the government on a national-security issue that is potentially ambiguous, they just won’t cooperate at all without a court order. Perhaps that is the rule we want going forward. But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers—and if it is the rule Congress wants, they should state it explicitly, so voters can hold them accountable for the consequences, rather than hiding behind trial-lawyer surrogates that later reward them for the earmarks to the trial bar. Should trial lawyers make terrorism policy?
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.
Mark Steyn throws down the gauntlet:
Last week the New York Times carried a story about the current state of the 9/11 lawsuits. Relatives of 42 of the dead are suing various parties for compensation, on the grounds that what happened that Tuesday morning should have been anticipated. The law firm Motley Rice, diversifying from its traditional lucrative class-action hunting grounds of tobacco, asbestos and lead paint, is promising to put on the witness stand everybody who “allowed the events of 9/11 to happen.” And they mean everybody – American Airlines, United, Boeing, the airport authorities, the security firms – everybody, that is, except the guys who did it.According to the Times, many of the bereaved are angry and determined that their loved one’s death should have meaning. Yet the meaning they’re after surely strikes our enemies not just as extremely odd but as one more reason why they’ll win. You launch an act of war, and the victims respond with a lawsuit against their own countrymen.
But that’s the American way: Almost every news story boils down to somebody standing in front of a microphone and announcing that he’s retained counsel. Last week, it was Larry Craig. Next week, it’ll be the survivors of Ahmadinejad’s nuclear test in Westchester County. As Andrew McCarthy pointed out, a legalistic culture invariably misses the forest for the trees. Sen. Craig should know that what matters is not whether an artful lawyer can get him off on a technicality but whether the public thinks he trawls for anonymous sex in public bathrooms. Likewise, those 9/11 families should know that, if you want your child’s death that morning to have meaning, what matters is not whether you hound Boeing into admitting liability but whether you insist that the movement that murdered your daughter is hunted down and the sustaining ideological virus that led thousands of others to dance up and down in the streets cheering her death is expunged from the earth.
(Mark Steyn, “No terrorism, just war?”, Orange County Register, Sept. 9; Anemona Hartocollis, “Little-Noticed 9/11 Lawsuits Will Go to Trial”, New York Times, Sept. 4; also to the point).
Six imams (who had just attended a private conference on imams and the media and politics) were waiting for US Airways Flight 300 and decided to act rather provocatively: they shouted “Allahu Akbar!” loudly while praying in the waiting area, refused to take their assigned seats (instead squatting in the front row of first class and the exit rows—consistent with trying to control the entry and exit areas of the plane), demanded use of a seatbelt extension for the morbidly obese despite being only moderately overweight (and then placed the heavy-buckled potential weapons under their seats instead of on their seatbelts), and started speaking to one another in Arabic (which a fellow passenger translated as angry denunciations of America). They succeeded in the attempt to draw attention to themselves; the captain asked them to leave the plane, they refused, and were then arrested; the plane then underwent a 3.5-hour search for bombs.
“They should have been denied boarding and been investigated,” former air marshal Robert MacLean said. “It looks like they are trying to create public sympathy or maybe setting someone up for a lawsuit.”
Sure enough, the victimizers are now playing victim and threatening to sue under the auspices of the Muslim American Society (which was previously in the news for demanding that Muslim cab-drivers be permitted to refuse rides to passengers carrying alcohol) and the litigious Council on American-Islamic Relations (Apr. 25). The provocation, helped along by new Congressman Keith Ellison (D-Minn.), also appears to have its desired effect: “The Minneapolis airport plans to add a prayer room for Muslims, and Democrats plan to hold hearings on Muslim profiling.” (Audrey Hudson, “How the Imams Terrorized an Airliner”, Washington Times/Front Page, Nov. 29; Arizona Republic op-ed, Nov. 29; Debra Burlingame, “On a Wing and a Prayer”, Wall Street Journal, Dec. 6; LGF blog, Nov. 21; “Tale of Fibbing Imams”, Investors Business Daily, Dec. 4 via Powerline blog, Dec. 6).
The Council for American-Islamic Relations (CAIR) has settled its Canadian lawsuit against the Web site Anti-Cair-net.org, the Canadian terrorism expert David Harris, writer David Frum, and the National Post. The settlement is secret, but there was no retraction of the claim that CAIR is a “terrorist-supporting front organization . . .founded by Hamas supporters” that aims “to make radical Islam the dominant religion in the United States.” David Frum has details in the April 25 National Post, and expresses optimism that free criticism of terrorism supporters can now take place.
Update: As Bob B points out in the comments, elsewhere in the blogosphere, Israpundit, LGF, and Powerline. Daniel Pipes also writes with extensive detail. It reasonably appears CAIR dropped the suit, to avoid submitting to discovery: an important lesson for every libel plaintiff. Three cheers for Greenberg Traurig LLP, which did pro bono work that was actually pro bono.
Trial is starting in a liability case against New York’s Port Authority over the 1993 bomb attack on the World Trade Center (see Dec. 5, 2004). (cross-posted from Point of Law).
The Council for American-Islamic Relations (CAIR) (Sep. 17) has continued their campaign of suing or threatening to sue for libel in an effort to silence critics who have alleged it to be soft on terrorism because of what Senator Schumer calls the organization’s “intimate links to Hamas.” David Frum comments on the notice he received. (”The Question of CAIR”, National Post, Nov. 23).
California, believe it or not, is in the forefront of tort reform by permitting defendants to recover attorneys’ fees when defamation suits are intended to chill protected free speech. Another twenty-two states have adopted similar laws, with bills pending in eight legislatures. See The California Anti-SLAPP Project, Nov. 11, and Mar. 12.
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“Say what you like about Osama bin Laden. He’s done wonders for the defamation bar,” says a British barrister. A group of wealthy Saudi businessmen are engaging in “libel tourism,” suing in British courts to silence American critics. British libel law, unburdened by the First Amendment, puts the burden on defendants to prove that their stories are true; the threat of libel suits often acts to deter journalistic inquiries, but now suits are being aimed at American publishers. The Wall Street Journal faces two lawsuits for a February 2002 report on Saudi support for terror that was reprinted in its European edition. (Michael Isikoff & Mark Hosenball, “Libel Tourism”, Newsweek Web, Oct. 22). (via Postrel)
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