With encouragement from both Congress and an active plaintiff’s bar, victims and survivors have been suing various foreign entities in U.S. courts charging complicity, sometimes indirect and roundabout, with participants in international terrorism. But a suit against Bank of China over a Palestinian Islamic Jihad attack suggests that “when it comes to battling global terror, civil suits by American citizens often do more harm than good.” Both the United States and Israel have reportedly negotiated with the Chinese institution to develop ways of combating illicit money transfers, but privately directed damages litigation tends to deter cooperation and perpetuate mistrust, and is hard to call off even when it has begun doing real harm to diplomacy. Even when lawsuits against some of the more obvious bad actors succeed, “the U.S. government has for years blocked financial judgments awarded to American plaintiffs against Iran and other foreign governments. Why? Such judgments are seen as conflicting with American foreign policy interests.” [James Loeffler and Moria Paz, Slate]
Earlier on lawsuits over terrorism: suing U.S. government over Kenya, Tanzania embassy bombings; Ted Frank 2007 essay; everybody “except the guys who did it“; Egyptian hotel forum-shopping; Tanzania gem smuggling; 9/11 suits and more.
The implications are mind-boggling [Houston Chronicle/Connecticut Post via NACDL via Americans for Forfeiture Reform, earlier] On paper, NSA is supposed to turn over spy-collected data only if evidence of serious unrelated crime turns up while investigating terrorist threats or other specified matters. However, as Reuters shows in an important new investigation, in drug investigations (and probably other types as well) “law enforcement agents have been directed to conceal how such investigations truly begin — not only from defense lawyers but also sometimes from prosecutors and judges” Thus the common little white lie about how such-and-such was discovered “during a routine traffic stop,” when in fact the traffic stop was intended to intercept something or someone known by previous investigation to be aboard the vehicle. With the origins of investigation routinely “phonied up” in this way, however, it becomes virtually impossible to know how many handoffs of spy information fall into gray areas beyond the clear intent of the authorizing law. [Julian Sanchez, Cato] Our coverage of the Foreign Corrupt Practices Act is here; earlier on surveillance here.
Yes, “copyright infringement”:
Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency's] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.
U.K.: “Dame Stella Rimington, the former head of MI5, has warned that the fear of terrorism is being exploited by the Government to erode civil liberties and risks creating a police state.” [Telegraph]
Friends of liberty? Not exactly:
Sen. Lindsey Graham would propose censoring Americans’ “snail” mail if he thought it would help protect national security, the South Carolina Republican said Tuesday. But for now, he says he doesn’t think it’s necessary.
“For now.” Nice. And Rep. Peter King (R-N.Y.) wants to prosecute reporters who publish leaked material. Meanwhile, say what you will about Glenn Greenwald, he’s willing to call out by name some “principle-free, hackish, and opportunistic” media lefties whose views on surveillance and civil liberties have proved malleable.
P.S., a reminder: Rep. Peter King made his name as an apologist for unspeakable IRA terrorism [Riggs]
Don’t just think vacuum cleaners, think J. Edgar Hoover. [Gene Healy, Washington Examiner] In fact there’s a long history of misuse of ostensibly secure law-enforcement files and databases [1993 GAO report; Robert F. Weir, ed., book on Stored Tissue Samples; unlawful private-investigator access to the National Crime Information Center (NCIC), the FBI's electronic criminal-records database] Once DNA databases are open to varied queries from multiple law enforcement agencies, can we presume them immune from abuse? Even the NSA, whose level of professionalism is presumedly far higher than that of local law enforcement agencies, is no stranger to stories about gratuitous and offensive abuse of privacy. And, writes Jim Harper, the evidence is that the NSA has gathered telecom metadata on a dragnet basis (as distinct from individualized suspicion) not merely for data mining, but to assist in investigations of persons who may happen to come under suspicion in the future, quite a different rationale.
More: “Was a Telecom CEO Sent to Prison Because He Resisted NSA?” [Alexander Cohen, Atlas, on Joseph Nacchio's prosecution on insider trading charges after QWest refused to participate in surveillance] For many other telecoms, at any rate, fear of regulatory muscle will turn them into eager cooperators [Ira Stoll on Verizon] Related: 2007.
According to a panel discussion hosted by the law firm of Edwards Wildman Palmer, sponsors of the Boston Marathon could face liability claims over the terrorist bombing of the event. One panelist cited the Station nightclub fire litigation in Rhode Island, in which plaintiffs lodged claims against upwards of 90 defendants, such as beer and radio-station sponsors of the concert, and won substantial settlements — $22 million from the parent company of the local radio station and $21 million from the beer defendants, for example. [Sheri Qualters, National Law Journal]
“Human rights advocates claim that the depiction of torture in popular TV shows has had the effect of promoting the practice in real life, implying that the production companies may have failed to meet their responsibility to respect human rights as articulated in the UN Guiding Principles on Business and Human Rights.” [Faris Natour, JustMeans.com; Wired on Zero Dark Thirty] “So, ban Schindler’s List?” [@susanwake]
Meanwhile, the regime in Iran says it will sue over its depiction in the movie “Argo” [CNN; more from Wikipedia on French lawyer Isabelle Coutant-Peyre, whose attempts to marry imprisoned terrorist Carlos the Jackal "have been frustrated by legal issues"]
The NYT’s Room for Debate airs pros and cons of what could be a significant new area of federal regulation.
A year ago the D.C. Circuit told the Transportation Security Administration (TSA) that it needed to go through notice-and-comment rulemaking for its controversial program of full-body scanners at airports. The rulemaking process is intended to ensure that the agency lays out clearly the factual, legal and policy basis for its actions, with a chance for opponents to lodge objections and establish a basis for judicial review. As my colleague Jim Harper points out, the agency has dragged its heels about doing this — a sort of passive resistance it would probably not tolerate from the hapless citizens stuck in its lines. TSA screening is one of the most widely resented governmental intrusions on the individual citizen of our era. Shouldn’t we all demand that the federal government demonstrate adequate justification for imposing it? [Cato at Liberty and Ars Technica; Consumerist; Constitutional Law Prof, 2011] (& welcome National Review “Web Briefing” readers; John LaPlante, Detroit News “Water Cooler”)
My new post at Cato at Liberty is on Italian labor law professors Pietro Ichino and Carlo Dell’Aringa, who live under police protection because of their support for liberalization of the job market; two other professors, Massimo D’Antona and Mario Biagi, have been killed by Red Brigades gunmen. More: Coyote.
British prime minister David Cameron is fuming over the latest in a long string of rulings by the European Court of Human Rights, which now has stepped in to protect a militant Islamist cleric from deportation to Jordan, where he has been convicted in absentia of plotting terrorist attacks. [Independent, Telegraph]
More: Cameron calls for reform of ECHR, says it is turning into court of “fourth instance” for general appeal of British judicial decisions [Telegraph, Guardian, New Statesman, Conservative Home]