Privatizing diplomacy

[Frank Newgent]

http://www.nytimes.com/2004/03/14/magazine/14MOTLEY.html?pagewanted=1

Motley built a successful legal career by winning quixotic lawsuits -- first against asbestos companies, which made him an extravagantly wealthy man, and then as a central player in the huge, 46-state case against Big Tobacco, at a time when going after cigarette manufacturers was a demonstrable route to bankruptcy. But whatever risks he took in suing multibillion-dollar corporations pale in comparison to this terrorism case. In trying to use domestic courts to redress the problem of global terror, Motley is potentially subverting, or at least opening to redefinition, the very notion of diplomacy. He and his clients are effectively acting as their own nation. This is naturally worrisome to international-relations professionals, who wonder whether profit-seeking trial lawyers have the legitimacy, expertise or proper motivations to be making foreign policy. ''That's why we have a government,'' said Sean D. Murphy, who served as a State Department lawyer from 1987 to 1998. ''It's elected to make some of the hard calls about how to handle foreign countries.''

That may be so. The problem, as Motley sees it, is that sometimes governments are not in the position to make those hard calls, whether it be for political or for commercial reasons. So instead, they make easy ones. They resort to gentle persuasion, and their pleas fall on deaf ears. ''Since 1999,'' Motley said later, ''officials at the highest levels of our government have tried repeatedly to warn the Saudis about terrorism funding. And what did they do? They ignored them.''

He took another dramatic pause.

''Which is why our defendants,'' he concluded, ''ought to be held accountable in an American court.''

Unlike most of the litigation filed in the aftermath of Sept. 11, which involves a fairly traditional body of laws and assumes a predictable pattern (the victims' families suing the airlines suing the insurers), the sweeping antiterrorism case brought by Ron Motley relies on new and evolving legal terrain, and its key defendants live in a Muslim monarchy halfway around the world. The United States also happens to consider this monarchy an ally, no matter how imperfect it may be. While Motley is aiming at other foreign parties, too, and while he is not suing the kingdom of Saudi Arabia itself, he is making a rather provocative statement by going after the kingdom's prominent citizens, banks and even some of its leaders. The State Department, while not formally weighing in against the suit, is watching it warily: the last thing it desires is the transformation of the American legal system into a blunt instrument of foreign policy. Bankrupting terrorism is certainly a national priority, even an urgent one, but hardly the task the diplomatic corps wants to entrust to a man who once, during closing arguments, wore a toy stethoscope in court.

Motley insists, frequently and not always convincingly, that he doesn't mean to make a national nuisance of himself; he is simply trying to address a fundamental injustice. Why, in the context of terrorism, should the needs of the state be privileged above the rights of the victims? Or, put another way, why should the flesh-and-blood targets of terrorist attacks -- the deceased and the bereaved -- take a back seat to the less tangible target, the state?

''Going through the court system and trying to take their money is the only recourse I have,'' explained Deena Burnett, the first client to sign on to Motley's suit. Her husband, Thomas, was on United Airlines Flight 93, which crashed into the empty field in Shanksville, Pa. ''I can't join the military. It would be impractical for me to go abroad. But if I can put a stranglehold on their finances,'' she said, ''it assists our president in the war on terrorism.''

Whether George W. Bush is grateful for her assistance is another matter. As Motley, a generous donor to the Democratic Party, is fond of pointing out, the president's ties to the Saudi kingdom are personal as well as political: his father, George H.W. Bush, was until recently a senior adviser to the Carlyle Group, an investment firm that counted bin Laden family members among its investors until October 2001. James Baker, whom Bush recently sent abroad seeking help to reduce Iraq's debt, is still a senior counselor for the Carlyle Group, and Baker's Houston-based law firm, Baker Botts, is representing the Saudi defense minister in Motley's case.

Yet however committed a Democrat Motley might be, Burnett v. Al Baraka Investment and Development Corporation, as the case is known, could hardly be described as a partisan crusade. Allan Gerson, a Washington lawyer and Motley's co-counsel, worked in the Reagan Justice Department. Private legal actions against terrorist financiers also have the support of a number of prominent Congressional Republicans, who have shown dwindling patience with the Bush administration's gingerly approach to Saudi diplomacy. Senator Arlen Specter, the Pennsylvania Republican, strongly supports Motley's investigation. Charles Grassley, an Iowa Republican and chairman of the Senate Finance Committee, was one of the original proponents of the legislation Motley is relying on for his case. In December, Grassley sent a sternly worded letter to the Treasury Department, demanding to know why the United States was slower than Europe to freeze certain Saudi assets. Last July, Richard Shelby, an Alabama Republican and former chairman of the Senate Intelligence Committee, publicly chastened the administration for classifying 28 pages reportedly about the Saudis from a Congressional report on Sept. 11.

Recently, I asked Shelby if he was nervous that Burnett might complicate life for the president. His answer was blunt. ''If Ron Motley can help unravel the mystery of a lot of terrorist financing,'' he said, ''I don't care who the president of the United States is. Or where the trail leads.''

Assuming the answer is Saudi Arabia, what does that make Motley's case, exactly? A glorified, globalized tort suit? Or an example of a new wartime jurisprudence, one that fights terrorism with lawyers as well as guns and statesmen? The answer, in a sense, is both, and it could be the new way of the world. Those who take a dim view of Motley's work, dismissing it as nothing more than worldwide ambulance chasing, will be startled to learn that it is theoretically possible, in today's borderless society, to follow a screaming siren all the way to Riyadh. ''Telling U.S. courts not to evaluate international tort claims is like King Canute telling the tide not to come in,'' said Harold Hongju Koh, the international law expert and next dean of Yale Law School. ''I'm sorry, but the sun is coming up tomorrow, and it's called globalization.''

Will the Bush administration try to block this lawsuit? Might others sue Don Rumsfeld over the use of depleted uranium in the Iraqi enterprise?

 

[crackmonkey]

I imagine they'd have to prove damages from the DU munitions. They've got quite an uphill battle, if so...

 

[Frank Newgent]

I imagine they'd have to prove damages from the DU munitions.

So you don't mind Rumsfeld being sued? Personally, I've been anticipating Kissinger's subpoena.

 

[Agammamon]

Not particularly, It might bring some accountability back into our government. I don't have anything against Rumsfeld but this sort of thing might be good for some of our other officials, though frivolous lawsuits will still be a problem.

 

[subgenius]

"Unless, that is, the Bush administration tries to block the suit. As a rule the administration favors a limited role for the judiciary in international cases. Later this month, it will argue before the Supreme Court against the use of the Alien Tort statute for human rights cases, absent a law from Congress explicitly allowing as much. Even with an imprimatur from Congress, the president clearly doesn't like Motley's use of the antiterrorism statutes; back in October 2002, news articles reported ''administration officials'' saying that the government was considering asking the courts to dismiss the suit. Victims' families reacted with the outrage you'd expect. The administration never intervened."

http://www.nytimes.com/2004/03/14/m...ml?pagewanted=1


(New York, May 15, 2003) - A new legal brief filed by the
U.S. Justice Department would roll back twenty years of
judicial rulings for victims of human rights abuse, Human
Rights Watch warned today.

On May 8, Attorney General John Ashcroft filed an amicus
curiae ("friend of the court") brief for the defense in a
civil case alleging that the oil company Unocal was complicit
in forced labor and other abuses committed by the Burmese
military during the construction of the Yadana gas pipeline.
The case, John Doe I, et al. v. Unocal Corporation, et al.,
was originally filed in 1996 and is currently being reheard
by the U.S. Ninth Circuit Court of Appeals.

The Justice Department brief went well beyond the scope of
the Unocal case, however, and argued for a radical re-
interpretation of the 1789 Alien Tort Claims Act (ATCA). For
over 20 years, courts have held that the ATCA permits victims
of serious violations of international law abroad to seek
civil damages in U.S. courts against their alleged abusers
who are found in the United States. The Justice Department
would deny victims the right to sue under the ATCA for abuses
committed abroad.

"This is a craven attempt to protect human rights
abusersdictators and abusive companies at the expense of
victims," said Kenneth Roth, executive director of Human
Rights Watch. "The Bush administration is trying to overturn
a longstanding judicial precedent that has been very
important in the protection of human rights."

Courts have upheld human rights suits under the ATCA since
1980, in a case brought by the father and sister of Joel
Filartiga, a seventeen-year-old Paraguayan. Filartiga was
kidnapped and tortured to death by a Paraguayan police
official who subsequently emigrated to the United States. In
that case, the Second Circuit Court of Appeals held that the
ATCA permitted victims to pursue claims based on serious
violations of international human rights law. Victims have
also been awarded damages against other perpetrators,
including Bosnian Serb leader Radovan Karadic and former
Philippine president Ferdinand Marcos. However, because the
defendants have traditionally been non-residents without
assets in the U.S., it has been difficult to collect the
awards.
http://lists.essential.org/pipermail/remember-bhopal/2003-May/000859.html

They won't have to intervene, and look bad in doing so, in the 9/11 cases, because of the Burmese case.
If they win in the Burmese case the 9/11 cases will be dismissed.

 

[Frank Newgent]

Hey sub: I hope you are doing well...

Am not a lawyer, but remember reading in the NY Times article I posted how Motley's case was considered somehow more substantive than some others under the 1789 Alien Tort Claims Act.

http://www.nytimes.com/2004/03/14/magazine/14MOTLEY.html?pagewanted=7

American civil courts are not unfamiliar with lawsuits involving international human rights. Since 1980, lawyers have made shrewd use of an obscure 1789 law called the Alien Tort Claims Act, originally intended to combat piracy, which gives American courts ''original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'' As a result, American judges have heard from Guatemalan victims of torture, from Haitian dissidents and from survivors of the Bosnian genocide. In the last decade, the same law has also been used in an attempt to hold multinational corporations accountable for malfeasance -- like Unocal, for example, for its alleged use of forced labor to provide security for oil pipelines in Myanmar.

The difference between Alien Tort cases and Burnett, however, can be measured in light years. Alien Tort cases are generally brought by human rights lawyers, working for a pittance, hoping to turn a 215-year-old law into an instrument of justice for citizens around the globe. Burnett is being brought by a plaintiffs' lawyer, toiling for a cut of the proceeds, hoping to use laws recently enacted by a law-and-order Congress to punish those who have brought harm to Americans. One can see how tastelessly opportunistic it might seem from the point of view of the human rights community: plaintiffs' lawyers, swooping in, turning a handsome profit off history's ugliest moments. Yet some human rights experts see real value in Burnett. ''It seems like a righteous case brought by an experienced lawyer,'' said Paul Hoffman, the human rights attorney involved in the Unocal suit. ''And who else has the kind of resources for it? Who else has that kind of cash up front?''

Motley does, of course. Yet there aren't many precedents for spectacular payoffs in cases like this one. Almost none of the plaintiffs who have sued successfully using the Alien Tort Claims Act have been able to collect from the hostile foreign parties they've targeted; generally, they are awarded default judgments when the defense doesn't show up in court. And most of the successful cases using antiterrorism statutes have been directed at countries on the State Department list of terrorism sponsors, like Iran and Cuba, whose American assets, if there are any, are generally frozen. The victories in all these cases are mainly moral rather than financial. In going after wealthy Saudis and Saudi financial institutions with considerable assets in the United States, Motley is part of the first generation of lawyers trying these cases who might actually be able to collect.

Funny how some folks who might pitch a conniption fit over Hussein never mention Kissinger...

 

[Tony]

Funny how some folks who might pitch a conniption fit over Hussein never mention Kissinger...

What's even funnier is when people try to draw moral equivalence when there is none.

 

[Frank Newgent]

And I was about to thank you for posting a link to a Hitchen's article on another thread.

Hey, come to think of it, your man doesn't think highly of Kissinger either.

http://www.trialofhenrykissinger.org/

The United States is home to an individual whose record of war crimes bears comparison with the worst dictators of recent history. Please stand, ex-Secretary of State and National Security Advisor, Henry A. Kissinger.

http://slate.msn.com/?id=2074678


Brought up Henry only because of the possibility of his being brought to trial. What fits with the subject of this thread.