Kenneth Anderson at Instapundit notes the latest outbreak of “lawfare,” the use of litigation against diplomatic and military actors. “As with most of these advocacy campaigns, the point is not to win cases, but to create a public narrative that says the practice is unsavory and illegitimate, and leverage that into personal legal uncertainty for officials, whether in office or once they leave government.” I’ve got much more on the phenomenon — and its large base of support in present-day legal academia — in Schools for Misrule.
Separately, Gabriel Schoenfeld at National Affairs argues that “when it comes to the American government’s efforts to provide for the common defense, a far-reaching legalism has taken hold,” and Anderson has more on the legalities of last week’s Bin Laden raid.
9 Comments
The Military Claims Act, 10 USC 2733, is the only waiver of sovereign immunity that may apply. However, there is no judicial review of claims under that statute. Further, the majority of the Courts of Appeal have held that when Congress has provided for a remedy by statute, Bivens torts are barred.
Guess that folks in the UK haven’t heard of sovereign immunity, it being a common law concept.
I hope that they do sue, and that the USDC Judge has the fortitude to hit the attorneys and clients with stiff Rule 11 sanctions for completely frivilous litigation.
I think the geographic coordinates of their HQ would be useful. Just sayin’…
John’s got the right idea here, a couple of fly-overs should reset their respect-o-meters. If not we can always sic a Google Earth team on them.
Or just classify as top secret who the predator drone operators are.
Look at all the other commenter pathetically trying to hide behind legalisms (wfjag, Benjamin) and appeals to force (John, Bumper). I wonder how they’d feel if a foreign country dropped a bomb on their SUVs and Mini Mansions, perhaps killing a family member or two. Would they be satisfied with ‘well, it’s a foreign country so there’s nothing we can do?’ I assume you guys were all for seeking a dismissal of Lockerbie claims based on similar concepts of sovereignty? You know, there might be a defensible philosophical position here as it relates to sovereign rights or whatever, but even wfjag and Benjamin aren’t interested in articulating such as position as you are in having things play out your way, fairness be damned.
Quite right, James. Targeted killings are wrong, since it means that the people who give the orders are not given increased protection. Bombs should kill random people. That’s fair.
Bob
Sure, James. The legal system in any country is fully competent to deal with war. ‘Fairness’ is not a hallmark of war, in case you hadn’t noticed. And while it might not have been my house or my SUV that’s been attacked wantonly, it has been my friends, my neighbors, and my family, and my country. Including above Lockerbie.
‘Justice’ is another word we might want to bring into the conversation, perhaps to replace legalistic textualism.
Targeted killing= we got the person we were aiming at (who knows if he/she did anything to deserve it). We also got the poor bastard who lives next door and never bothered anyone and the kids playing in the street too.
USA! USA!
James
Someone tries to kill me, or makes a credible threat to do so (“I’m going to kill you sucka” while reaching into their pocket), it’s fair game for me to draw and shoot them first. That’s a basic principal of self defense.
Translated to the international realm: These individuals and groups have made clear they intend to kill Americans, period, by both their statements and past actions. The past actions give credence to their statements or threats of future violence. By the same principal as an individual has to self defense, it’s fair game that the US Government shoots them first to defend the citizenry of the US. That’s one task clearly spelled out in the Constitution – to provide for the common defense.
These individuals are free to live a life of peace and honest labor – they’ve instead chosen to live by the sword. That they die by the sword…..meh. Send ’em to he**, the faster, the better.
And that’s an argument made on first principals of morality and law. Self defense isn’t a crime.