Terror in the courts

Ted Franks:

Six years after September 11, there is a healthy and extensive debate about the appropriate relationship between and scope of the powers of the three branches of government in addressing terrorism.[1] Perhaps surprisingly, however, there has been little discussion of the role of unelected trial lawyers, and how the civil justice system and the judicial branch's friendliness to regulation through litigation gives attorneys a financial incentive to use state and federal courts to undo sensitive decisions of the elected branches of government. Worse still is that the trial bar has lobbied for such an expanded role, and Congress has aided and abetted its goals.

One can imagine a parody--a team of wing-tipped attorneys parachuting into the wilds of Waziristan, armed with subpoenas forcing Osama bin Laden to produce all relevant documents and secure his attendance at a twenty-day videotaped deposition (damn the Geneva Conventions against torture). The legal and photocopying bills alone would crush al Qaeda.[2] The reality is much more prosaic--and less amusing.

Jack Landman Goldsmith's new book, The Terror Presidency, notes the burden of fear of hindsight bias on administration policies:

In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn't. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers' fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one's career, even if you emerge "innocent."

This burden on the nation's anti-terrorism policy is further exacerbated by the misuse of the civil justice system, which, because of missteps by Congress and the judiciary, is structured to create incentives for private individuals and state governments to interfere with national policy goals for self-serving gain.

In the 1970s, many state courts began to decide that the intentional acts of criminals should not bar plaintiffs from collecting money from others with deeper pockets. If you are carjacked, sue the parking lot owner. Most legislatures have yet to reverse this radical legal change.

Thus, trial lawyers, thanks to New York Supreme Court Justice Nicholas Figueroa's generous rulings and jury instructions, persuaded a jury in October 2006 that the terrorists who planted a truck bomb in the World Trade Center garage in 1993 were only 32 percent responsible, while the Port Authority of New York and New Jersey was 68 percent responsible--and therefore, under New York law, wholly on the hook for $1.8 billion in damages.

After 9/11, lawsuits would have bankrupted several corporate victims of the attacks were it not for a $7 billion, taxpayer-funded payout to potential plaintiffs. Even so, several dozen claimants opted for litigation. Naturally, their lawyers have sued everyone from the airlines to Boeing to Motorola to New York City. Attorneys are asking for billions of dollars in damages, and the first of these cases will go to trial on September 24. Banks have not been immune from terrorist-related lawsuits, either. They are being hauled into court because of who has accounts at their institutions.

...

There is much more. some of these cases are perverse. they are in effect suing victims of the terrorist attack for not stopping it. Other cases make it even more difficult for people to stop the terror attacks by suing entities that provide information to the government.

There have been a few "good" cases where institutions who assist the terrorist by facilitating the transfer of funds to the terrorist or his family have been sued. but as a whole the lawfare approach to terrorism has been a huge problem that has aided the terrorist.