Mon, Aug 04, 2003 - Page 6 News List

US courts' role in foreign fudes comes under fire


As courts in the US hear more lawsuits over disputes beyond the country's borders, government officials and legal scholars are saying that the trend is creating a situation rife with diplomatic pitfalls and the Bush administration is complaining that the lawsuits are hampering the fight against terrorism.

The examples in recent weeks have been many, and the sums involved large. A federal judge in Washington, ordered Iraq to pay nearly US$1 billion to US soldiers captured and tortured in the 1991 Gulf War, and another ordered Iran to pay US$313 million to the children of a US woman killed in a 1997 suicide bombing at a Jerusalem market.

A Scottish woman offended by a Holocaust memorial that would disturb human remains at a Nazi death camp in Poland sued in New York to stop construction. Venezuelan President Hugo Chavez, has been sued in Miami by relatives of people killed in an antigovernment protest on the streets of Caracas, the capital.

The Bush administration has been particularly vocal in opposing such litigation.

"The current litigation-based system of compensation is inequitable, unpredictable, occasionally costly to the US taxpayer and damaging to foreign policy and national security goals of this country," William Taft IV, the State Department's legal adviser, said in Senate testimony last month.

Diplomatic risks

"US courts are a magnet for international litigation," Curtis Bradley, a law professor at the University of Virginia, said in an interview.

"But courts are not institutionally equipped to conduct foreign relations. The executive branch might be greatly concerned about human rights abuses but might have to weigh that against concerns with terrorism, or it might want to use a carrot approach rather than a stick approach."

John Choon Yoo, law professor at the University of California and a visiting fellow at the American Enterprise Institute, agrees that the courts do not always see the big picture.

"A court sees only the discrete case before it," he said. "It can't and it is not allowed to see the totality of the facts. Courts aren't good at measuring the costs and benefits of anything. They're good at right and wrong, not costs and benefits."

But as the US' global power has grown, said Peter Spiro, a law professor at Hofstra University, courts have shed a longstanding reluctance to hear international human rights cases.

"There is a sense that there is less of a downside risk of entertaining cases with foreign policy implications," Spiro said. "In the Cold War world, there was a fear that courts could trigger World War III."

Many legal scholars say the administration's opposition to such litigation is an overreaction. US courts hear countless international cases involving commercial disputes, noted Harold Hongju Koh, a law professor at Yale who was a State Department official in the Clinton administration.

International courts

Douglas Cassel, a law professor at Northwestern University, said there was a tension between America's enthusiasm for litigation and its resistance to foreign and international tribunals.

"A lot of countries have been saying, `Where does the United States get off being the world leader in adjudicating these suits against other nations but not against the United States itself?'"

Money has changed hands after verdicts in these cases only a few times, and even then generally because Congress has intervened.

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