Great national traumas inevitably give way to tangles of litigation, and so it will go, in all likelihood, in the wake of the attacks on the World Trade Center and the Pentagon. There will be criminal prosecutions and gnarled disputes over insurance coverage and liability but there may be something new as well: civil litigation against the terrorists themselves.
Could someone really sue Osama bin Laden, the prime suspect? In recent years, American courts have heard lawsuits based on large-scale violations of human rights, including those that occur outside our borders. Courts in the United States have issued civil judgments against a Guatemalan defense minister (for various abuses, including the kidnapping and torture of an American nun), an Argentine general (for murder and torture during the “dirty war”), and the late Ferdinand Marcos (for murder and other abuses in the Philippines). “Terrorism is clearly a violation of international law,” Anne-Marie Slaughter, a professor of international law at Harvard, said last week. “And it’s clear that, under American law, you can sue for violations in our courts.” (A civil trial of Slobodan Milosevic for genocide and mass rape was recently completed in Boston federal court; a decision is pending.)
Bin Laden appears to have something that plaintiffs like: deep pockets. “If you have a strong case, you can tie up a foreign bank account even before you have a judgment in our courts,” said Michael Ratner, a lawyer with the Center for Constitutional Rights, which has brought several such human-rights cases. “The United States could do it right now. Mostly, what it takes is good intelligence, people on the inside, informants at the bank.”
Nonetheless, the obstacles to a civil case against bin Laden (or any other non-American alleged perpetrator) are daunting. First, you’d have to find him. “Bin Laden would have to be arrested and brought here, since the United States limits its jurisdiction to people and organizations that are physically present in the U.S.,” said Jennifer Green, who is also a lawyer for the Center for Constitutional Rights. “But there wouldn’t be a problem with serving him legal papers in prison.” Then, of course, you’d have to have enough admissible evidence to prove liability. So far, the public hasn’t seen much of that.
Even if bin Laden himself were never arrested, it might be possible to sue the states that assisted him. Formerly, foreign states could not generally be sued in American courts, but in 1996 Congress changed the law to allow cases against states that support terrorism or torture. “It used to be that courts said that lawsuits like these were messing with our foreign policy, and they generally threw them out,” Slaughter said. “But Congress is now encouraging them, and the courts are allowing more and more of them to proceed.”
These human-rights lawsuits are a local manifestation of a growing interest, mostly abroad, in international law. (There’s even a group of lawyers, based in Belgium, called Avocats sans Frontieres—Lawyers Without Borders.) In recent years, international criminal law has developed some real teeth; at present, prosecutions are under way in The Hague, against Milosevic and others for crimes in the former Yugoslavia, and in Tanzania, against alleged perpetrators of the Rwandan genocide. As for the civil cases in American courts, the lawyers who bring them tend to recognize that the chances of actual financial recoveries are small, if not nonexistent. But such cases may represent the rare occasion when it’s not all about the money. “People feel better when they know they can file a lawsuit, even if they never get any money,” Ratner said. “It’s also a way for people who have been hit hard at least to strike back, a way to tell their story.”