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The American Enterprise
January/February 2003
By Alan W. Dowd

U.S. troops aren’t the only ones waging the war on terror. An army of lawyers has also been drafted into the fight. Regrettably, they haven’t been as effective as their camouflaged counterparts. In fact, most of the legal maneuvers have been downright counterproductive.

After initially promising to hold their fire, trial lawyers are now lobbing lawsuits at will, most aimed at collecting compensation for the World Trade Center attacks. At least ten lawsuits have been filed against the airlines, which, of course, were victims of the September 11 disaster themselves. As Ralph Reiland, professor of free enterprise at the University of Pittsburgh, recently reported, “Some 1,300 people have given official notice that they may sue New York City for a total of $7.18 billion because of the city’s alleged negligence in the wake of the September 11 attack.” The city’s power supplier, ConEdison, and its insurers, have filed suit against the Port Authority of New York and New Jersey, arguing that the fires which hollowed out and felled World Trade Center 7 could have been prevented if only the Port Authority had installed different diesel tanks.

Other legal battles are simmering half-a-continent away. At the foggy intersection of U.S. law and international law, a handful of groups have tried to win the release of al-Qaeda detainees held at Guantanamo Bay in Cuba. As the New York Times lamented in September, to America’s critics Guantanamo has become “a synonym for human rights violations.” One of those critics calls bin Laden’s captured killers “the forgotten captives of the war.” Thankfully, cooler and wiser heads have prevailed at the appellate level. But no one knows how long the Pentagon and Justice Department will be able to hold off the two-pronged legal assault from foreign and domestic activists.

Not all legal bombshells are falling on friendly forces. On a single day last August, prosecutors in Seattle, Detroit, and Germany indicted men linked to various terror plots. One of those nabbed in the German dragnet was indicted on 3,000 counts of murder. By autumn, an al-Qaeda cell was uncovered in Buffalo, its members accused of training at terror camps in Afghanistan and plotting attacks in America. (Incredibly, one of the accused was granted bail.)

More recently, some 700 relatives of September 11 victims made headlines by filing a $1 trillion suit against Saudi officials and the Sudanese government. By suing members of the Saudi royal family, charities, banks, and other front organizations, the plaintiffs believe they will cripple those who funded the attacks. According to Allan Gerson, a lead attorney in the super-suit, their goal is doing nothing less than drying up the financial reservoirs of al-Qaeda and other terror networks. Another 1,400 family members have sued Saddam Hussein for complicity in the September 11 attacks. Although U.S. law allows Americans to access the frozen assets of terrorist states, Saudi Arabia has not been designated as such. And the frozen assets of terrorist front organizations, the Iraqi government and the Sudanese government don’t approach what the plaintiffs are entertaining.

In Washington, federal prosecutors are still basking in the afterglow of their John Walker Lindh conviction. According to U.S. attorney Paul McNulty, the Lindh plea agreement marked “an important victory for the American people in the war on terrorism.” While Lindh’s conviction is welcome news, a 20-year prison sentence for taking up arms against the United States strikes most Americans as something less than justice.

However, the legal victories have been few and far between. As an Associated Press report gloomily announced this past fall, “Bush’s war on terror is losing in court.” Federal courts have directed the government to hold public deportation hearings. A district judge in Washington, D.C. ordered the Justice Department to release the names of all those detained in the United States since September 11, 2001. For the first time, a federal intelligence court denied a Justice Department wiretap request. And in an effort to ensure a fair trial, federal prosecutors carelessly gave 48 classified intelligence reports to Zacarias Moussaoui, the so-called twentieth hijacker. Moussaoui is now demanding access to other captured terrorists, citing the Sixth Amendment, which guarantees the accused the right to gather “witnesses in his favor.” 

The most notorious legal setback, of course, came less than a day into combat operations in Afghanistan, when a still-nameless Judge Advocate General officer somewhere in the Pentagon’s Central Command blocked U.S. forces from attacking a convoy carrying Taliban leader Mullah Mohammed Omar. In so doing, that military lawyer ensured a longer war in Afghanistan and quite likely more American casualties. Indeed, American troops were still fighting—and dying—in pitched battles with Omar’s men six months after the legal-military blunder. Omar is famously still at large.  

These stories may seem unrelated, but they aren’t. Each is an example of how misguided America’s response to terrorism has been—and continues to be. From Pan Am 103 to the first attack on the World Trade Center in 1993 to the embassy attacks in 1998 to the final attack on the World Trade Center in 2001, we have treated bin Laden and his forerunners and followers like a mob family rather than what they are—a motivated and tenacious military adversary.

They aren’t impressed or intimidated by the long arm of American justice. As former U.S. attorney Mary Jo White put it, “Criminal prosecutions are simply not a sufficient response to international terrorism.” In fact, if indictments and legal briefs were effective in combating terrorism, the World Trade Center would still be standing. Consider the record:

In 1993, Islamic terrorists threw their first blows at the Twin Towers, killing 6 Americans and injuring 1,000. Washington responded with indictments and prosecutions. In 1996, a truck bomb exploded outside the U.S. military’s Khobar Towers in Saudi Arabia. The blast claimed 19 airmen and injured 200. Washington responded with indictments and deportations. In 1998, terrorists bombed a pair of American embassies in East Africa, murdering 224 civilians and injuring more than 5,000. Washington responded with an impotent volley of cruise missiles, an indictment of bin Laden, and a $5 million bounty. Finally, in October 2000, terrorists used a rubber boat to blast a hole in the USS Cole, killing 17 sailors. Washington responded not by sending troops into Yemen, but FBI agents.

In one sense, the desire to redress wrongs in the courts is a good thing. It’s a reflection of America’s preferred way of settling disputes. Rather than cut off appendages, we ask a judge to garnish wages. Rather than kill each other, we sue each other. Rather than firebomb corrupt corporations, we take them to court. We are a nation of laws and rights. Our system of government is grounded in the written word, not in the whims of a dictator. And since the interpretation of the written word can expand or limit our rights, we rely on lawyers to argue about what those words mean and how far those rights extend.

The critical difference is this: Our courts are for administering justice in America and settling disputes between Americans—not for waging war.

Far from being fear-struck by indictments and legal labels, the masterminds of modern terror wear the notoriety as a badge of honor. Bin Laden bragged after Washington added the Taliban to its list of state-sponsors of terrorism in the late 1990s: “This decision is for us a certificate of good conduct for the government of the Taliban, and it acquits them of the accusation of being followers or agents of America.”

Even so, it’s wrong to saddle trial lawyers, federal prosecutors, and JAG officers with all the blame for the legal quagmires that have delayed the war on terror. We have ourselves to blame as well. Military lawyers would not be so jittery were it not for the litigious nature of modern America. Trial lawyers would not be so quick to fire off legal briefs were it not for America’s courtroom myopia. We need look no further than the nearest television set—crowded with at least a dozen programs and an entire network devoted to legal disputes and the courts. It’s hard to tell if this is a case of life imitating art or art imitating life. There are some 18 million lawsuits filed in state and federal courts every year. Nine out of every ten suits filed on earth are filed in U.S. courts, and 70 percent of the world’s lawyers live in the United States. Moreover, we settled this century’s first Presidential election in a courthouse. And for much of the 1990s, the President divided his time evenly between his lawyers and his Cabinet, elevating his fleet of counsels to a kind of fourth branch of government.

Likewise, it’s wrong to question the motives of those who are trying to wage this war in the courts. Most of them are pursuing the same goals as America’s men and women in uniform. However, it’s altogether appropriate to question their methods. As Pascal wrote, “Law without force is impotent.” These suits and indictments might make plaintiffs and prosecutors feel good, but since there is no force of U.S. law beyond our shores, they have no impact where it matters most—with an enemy that uses children as time-bombs and civilian airliners as guided missiles.

The only way to fight this enemy is with warriors.