9/11 widow calling out U.S.-Saudi coziness highlights failure of liability regime to deliver justice

Flag from Ground Zero appears in September 11 commemoration
last week at American History Museum in Washington, D.C.
G. Edward Johnson via Wikimedia Commons CC BY 4.0

"Tell the Saudis to stop lying," a September 11 widow told the 25th annual memorial gathering in New York City on Friday.

Terry Strada is the widow of Thomas S. Strada, a father of three and Cantor Fitzgerald bond broker killed in the terrorist attack on September 11, 2001. She broke the tradition of exclusively apolitical statements at the annual memorial. But she drew applause from the crowd and shamed the assembly of every living former President and the current Vice President, who were there.

Here's more of what Strada had to say, from The Hill:

"For 25 years, administration after administration, including leaders in front of us here today, chose to protect the Saudis instead of standing with the 9/11 families," she said. 

"They withheld evidence," Strada continued. "They vetoed JASTA [Justice Against Sponsors of Terrorism Act]. They broke promises, both public and private. It has been one betrayal after another."

"Tell them that if they want to be friends with the USA, they cannot continue to deny all of this, all of the pain, all of the destruction that we have all been suffering through," Strada said.

The Guardian has further coverage. 

There's no disputing Strada's facts. Twenty-eight pages of the 2002 congressional report on 9/11 were redacted for 14 years and did show possible ties, though nothing definitive, between Saudi officials and 9/11 hijackers. Many 9/11 records, including parts of the 2002 report, remain classified and have dribbled out over the years, including daily presidential briefings released just last week. Tim Burke at the Freedom of the Press Foundation has more on the latest. The City of New York also dumped a document trove into sunlight last week, including revelations of especial interest to first responders showing what officials knew about dangerous air quality.

Both Bush and Obama administrations tried to protect the Kingdom of Saudi Arabia (KSA) from accusations of 9/11 responsibility. The United States is not dependent on Saudi oil. But the White House saw, and still sees, KSA as an essential diplomatic and military partner in Middle East security.

In 2016, President Obama did veto JASTA. Congress overrode the veto five days later. The law waives foreign sovereign immunity in civil claims against foreign governments that aid and abet terrorism, whether with action or with money. 

Legislators were not so noble as it might seem. They knew well that JASTA claims would be next to impossible to prove against KSA, especially while 9/11 intelligence remained classified. So JASTA was really symbolic, something to boast about back home in the district. September 11 families would be pacified for a time while preoccupied with the bureaucracy of civil litigation.

Even if JASTA plaintiffs could obtain evidence, they would have a hard time ever proving a causal chain from the Saudi state to the 9/11 attacks. KSA might have ignored warning signs—so did the United States—but was hardly looking to destabilize geopolitics and send energy demand into free fall.

Indeed, since 2016, no JASTA suit has gained serious traction. A much touted suit against Israel in 2017 has gone nowhere and certainly has not been a deterrent to Israeli warfare. Iran has not even defended against JASTA suits and has suffered default judgments. That just moves plaintiffs into enforcement actions in the United States, in which they've been profoundly unsuccessful. Administrations of both parties have intervened against the plaintiffs, preferring that the government control Iranian assets to use them for diplomatic leverage.

The determination of Strada and other JASTA plaintiffs despite long odds, dim enforcement prospects, and opposition of their own government is a stirring reminder of the manifold purposes of tort law, or civil dispute resolution more generally. The U.S. tort system tends to emphasize, usually to a fault, the aim of compensation. But most 9/11 plaintiffs have received some compensation already from the federal victim compensation find.

Rather, plaintiffs in many types of cases, and especially in wrongful death, are usually after something else entirely. No amount of money can bring back a loved one. But justice is a relentless motivator.

Nevertheless, the law never has favored compensation for plaintiffs in U.S. courts for matters implicating foreign affairs. The preference is partly structural. The Constitution provides roles for both the executive and legislature in foreign policy. Congress often has abdicated, justifiably and not. But foreign policy in any event was always to be policy, by design, a matter of distributive justice for the political branches, not a problem in corrective justice for the courts. 

The preference also is political and is less defensible in that vein. As money became the lingua franca of Washington especially in the post-World War 20th century, policymakers became reluctant to trust courts, much less civil complainants, with regulatory influence over powerful and wealthy actors. In other words, the grubby hands of the unwashed masses must not be allowed to derail the gravy trains of the elite. The distaste for civil complainants against states supporting terrorism is a cousin, and not even a distant one, of the reluctance to create private causes of action in civil rights and consumer protection. 

In an outcome under-reported by mass media amid the usual flurry of Supreme Court opinions late in the last term, in Cisco Systems, Inc. v. Doe, in June, the Court disallowed a lawsuit accusing a U.S. corporation of knowingly developing technology for the Chinese government to facilitate the identification, arrest, and torture of members of the Falun Gong spiritual movement. The Court ruled out both corporate liability under the 1789 Alien Tort Statute (ATS) and aiding-and-abetting liability under the Torture Victim Protection Act (TVPA), appended to the ATS in 1991.

Both conclusions are debatable on the merits; the Court ruled 6-3. But more significant is the problem that remains: whether, or when and how, transnational actors can be held accountable in the United States for their complicity in human rights violations abroad.

As the United States has sought to eschew judicial involvement in foreign matters, other nations and the international legal system have been trying to step up. There is needed and dawning recognition around the world that transnational actors, public and private, have for too long been permitted to operate above the law. From Big Oil in South America, to Big Ag in Africa, to Russia in the former SSRs, the supposed rule of law has failed to stop bad actors from literally getting away with murder.

Which brings us back to KSA. To be fair to the past presidents, the United States always has been in a tough spot with the Saudis.

KSA seems to enjoy impunity in the murder of Jamal Khashoggi, oppression of dissidents at home and abroad, dubious policies on gender and sexual orientation equality, religious freedom, and immigrant labor, and financing war in Syria and Yemen. I'm not saying all such Saudi policies are indefensible, and I'm not letting the United States off the hook for its own issues. I mean only that there seems to be no official inquiry at all; other nations fairly accuse the United States of a double standard. 

The pandering of Bush, Obama, Biden, and Trump to Saudi royals is perennially stomach-churning. Western politicians will smile and abide when KSA hosts the 2034 FIFA World Cup, just as they abided Saudi acquisition of LIV Golf (until this year), Newcastle United, and Electronic Arts. And the United States is moving forward (probably) on an agreement to share nuclear technology with KSA for, one hopes, only civilian applications. 

And no wonder. The United States and KSA continue to rely mutually on strategic alliance for security interests in the Middle East. Meanwhile, Trump and allies, including son-in-law Jared Kushner, are profiting handsomely from Saudi investments.

One might wonder whether a time will come to pay the piper. Late last week, KSA grew frustrated as Iran-backed Houthi rebels seized from Saudi-financed government forces the entire Red Sea coast of Yemen. The Houthis thus gained control—this might sound familiar—of a vital strait and key islands in the transit of oil.

About the same time, KSA suffered a drone attack on its East-West oil pipeline. The massive conduit, stretching 1,200 km (746 miles), vital in the best of times, is a critical overland bypass to the Strait of Hormuz. The attack came from Iraqi territory, but almost certainly was the work of Iran-backed forces, and the timing dovetailed with the Houthi advance. The pipeline is shut down now for damage and risk assessment. I hope you filled your gas tank over the weekend.

In the wake of this one-two punch, reports say that Crown Prince Mohammed bin Salman (MBS) himself—whom you might remember from such hits as the Khashoggi dismemberment and Biden fist bump—asked the White House to intervene militarily against the Houthis. Middle East commentator Professor James M. Dorsey observed analogously seven years ago: "The Saudis do not want an open conflict with Iran. The Saudis would like others to fight that war, and the others are reluctant."

Whether or not Trump personally felt inclined to oblige in Yemen, U.S. military resources happen to be running thin. And Republicans campaigning for midterm election would go into full meltdown if the country were to go to war on a second front.

So the President had to let down his Riyadh chum, but did pledge to send 200 military advisers to beef up intelligence sharing. Why does that also sound familiar (inflation since 128 in 1950)? Well, don't worry, the President said. He had a call with MBS, and "everything's going to work out fine and dandy. It's going to be very good."

A deepening Saudi alliance, a merely symbolic JASTA, and a neutered ATS: Seems to me that the United States is succumbing to sycophancy as its place in the new world oligarchy.

Pentagon still stands, healed of 9-11 wounds

Leaving Reagan National Airport (DCA) yesterday, clear skies afforded a view of the Pentagon, which a comment on NPR this evening reminded me is the only building struck on September 11 and still standing. Living in Little Rock, Arkansas, in 2001, I remember many of us who had occasional business in the nation's capital thought that DCA surely would have to close. A shame, we thought, given its convenient proximity to district destinations. No doubt a result of hard work by federal officials, along with some blessings and some luck, DCA operates still. And that, business as usual, seems to me, is the best evidence of a society prevailing over terrorism. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

With Keaton as Ken Feinberg for 9/11 20th, 'Worth' challenges tort norms with study of victim comp

Worth, a dramatization of Kenneth Feinberg's special mastership of the September 11 Victim Compensation Fund, dropped on Netflix today in select markets.

I frame my 1L Torts class with exploration of tort alternatives, and I periodically infuse our study with comparative law.  Typically, I begin Torts I in August with a study of the New Zealand accident compensation system.

I ask the class whether Americans might similarly embrace social compensation.  Notwithstanding their personal predilections, students readily identify objections based in deterrence dynamics, the American ethos of personal responsibility, and our cultural priority of "day in court" entitlement.

In the spring semester, I round out Torts II with a return to tort alternatives in America's exceptions to the rule, easing our study from worker compensation to compensation funds, such as 9/11 and BP.  Students are then challenged to consider: if Americans find the notion of New Zealand-style social compensation system so repellent, why do we embrace it when the stakes are especially high?

For two years now, I have used the German-made Playing God (2017), a documentary about Brockton, Mass.-native Feinberg, as a springboard for class discussion of the necessary parameters of social compensation systems, including valuations.  Previously, I used recorded lectures by Feinberg.  A good, recent, and more-concise-than-usual item is his talk at Chicago Ideas Week on the theme of his 2005 book, What is Life Worth?—the original title of the movie, Worth, according to IMDb.

Even if a torts professor does not wish to cover alternative compensation systems, these are useful audiovisual catalysts for discussion of the valuation of life and loss, as part of the study of damages.  Other worthy tools, in the podcast vein, include "Worth" on Radiolab (2014) and Feinberg's appearance on Freakonomics Radio (2018).

Starring Michael Keaton as Feinberg, Worth is necessarily a Hollywood conflation of events and issues, focusing on 9/11 upon its upcoming 20th anniversary.  Still, plenty of effort is exerted to remain faithful to history.  Feinberg is pictured enduring the heat of an angry and frustrated assembly of families, after which he has informative if discordant exchanges with individuals.  There are also discrete scenes of victim testimonies that might seem interruptive of flow in an ordinary drama, but can't help but captivate in the haunting context of 9/11.

These interactions and the orbiting characters who emerge in the story are clearly modeled on, or amalgams of, real events and persons, many of whom were recorded in videos from the time, and clips of which can be seen in Playing God.  Exemplifying his skills as a character actor, refined in landmark roles from Beetlejuice to Birdman to Ray Kroc, Keaton offers a compelling portrayal of Feinberg as the peculiar human protagonist whose likeness has become inextricable from American mass compensation systems, for better and for worse.

Worth is a superb ride and offers endless starting points for serious academic discourse on the subject of compensation models, not to mention the role of the legal profession and the complex sociology of death.  The film is a welcome addition to the audiovisual arsenal for classroom teaching to stimulate deep thinking on the wisdom of tort law.

Case Western-Red Cross program to consider international law, teachings of 'Star Trek'

Star Trek's Gates McFadden greets a soldier at a USO event
in Bosnia and Herzegovina in 1996.
(Defense Department public domain image VIRIN 960303-A-6435A-009.)

A long time ago, at a law school far, far away (admitted metaphor malaprop), I wrote a symposium research piece on Star Trek's Prime Directive, as relative to the U.S. invasion of Afghanistan to dethrone the Taliban after September 11.

I concluded back in those halcyon days that the most valuable lesson of the Prime Directive is that its violation is inevitable.  The rule of non-interference in pre-warp cultures in the 23rd century speaks importantly to the virtues of cultural relativism.  But there come times when a moral society must choose between its sacred writ to respect independent social evolution and its commitment to the natural rights of sentient life.

I don't know what the chaos in Afghanistan today says about my conclusion then.  Maybe I was right, that we were justified in invading Afghanistan with our higher calling (bellum justum), but we royally screwed up the implementation (snafu ineptus).  Maybe balancing western rights and regional relativism was always fated to fail, an impossible integration of irreconcilable norms.  Maybe I was wrong, and we should have built a wall around Afghanistan, as some then advocated only partly apocryphally, and waited for an interstellar society to emerge.

A wise Ferengi once said, "The more things change, the more they stay the same."  It's 2021.  Afghanistan is in chaos.  The Taliban are in charge.  And a next, next generation of the Star Trek franchise is trying to help us make sense of our world.

On September 8, Case Western Reserve University Law School and the American Red Cross will feature Case Co-Dean Michael P. Scharf to discuss, in present context, his 1994 law review article, The Interstellar Relations of the Federation: International Law and Star Trek the Next Generation.  Here is the event description:

On May 4, 2020 (“Star Wars Day”), the American Red Cross hosted a widely attended webinar on “Learning the Law through Film: Star Wars and International Humanitarian Law.” Inspired by the huge success of this event, the Red Cross decided to celebrate Star Trek Day on Wednesday, Sept. 8, by asking the Case Western Reserve University School of Law Co-Dean Michael Scharf to host a multi-visual online presentation of his  law review article “The Interstellar Relations of the Federation: International Law and Star Trek the Next Generation.”

With four new Star Trek series currently streaming, and a new film in production, the franchise is as popular as ever. On the 55th anniversary of the broadcast of the first Star Trek episode, you are invited to join an exciting hour-long trek through international law to explore strange new worlds, seek out new life and new civilizations, and boldly go where no one has gone before!

In this lunch-hour presentation, Co-Dean Scharf will discuss current controversial issues in international law by comparing them to the interstellar law encountered by Captain Picard and the intrepid crew of the Enterprise in seven years of Star Trek: The Next Generation. The presentation covers everything from the law governing the use of force to human rights law, the law of the sea to international environmental law, and treaty interpretation to international arbitration.

The event will include an introduction by Christian Jorgensen, legal advisor of the American Red Cross’s national headquarters, and an interactive Q&A via chat.

Naturally, I cited Scharf in my 2003 article.  And we both cited the imaginative and exemplary work of Nova Southeastern Professors Paul Joseph and Sharon Carton.  This vein of research and pedagogy rendered me fortunate to meet Joseph before he passed away much too early, in 2003, and also to meet Professor Christine Corcos, a treasured colleague, collaborator, and expert in teaching law with popular culture.

Incidentally, "Star Trek Day" on September 8 marks, as the CWRU event description says, the first franchise broadcast in 1966.  But the more important date of consequence in the lore of the Prime Directive is April 5, First Contact Day.

While we're on the subject, check out this paean to Trek from WNYC's Brooke Gladstone. This is a reprise of a 2006 piece, honoring Gene Roddenbery's birthday, August 19, 1921, a century ago.

Observers grasp at hopes for Afghan women

If you're like me, you're watching events in Afghanistan unfold with heartbroken anxiety.  (And there's Haiti, but let's take one tragedy at a time.)  I'm not usually a sucker for the broadcast news kicker (though once upon a time, I loved to write them), but David Muir punched the breath out of me with this one.

.@DavidMuir reports with a moving image from Kabul showing Afghan girls walking to school despite growing fears their freedom could be in jeopardy. https://t.co/uYhQDir8yx pic.twitter.com/bcJytv0415

— World News Tonight (@ABCWorldNews) August 17, 2021

After talking to our daughter, 22, my wife shared the realization that today's young adults don't have contemporary recollection of the brutality of Taliban rule in pre-9/11 Afghanistan, especially the implications for women's freedom and education.

Afghan women in literacy class in 2008
(U.N. photo CC BY-NC-ND 2.0)

Those of us in adult life on September 11 became acquainted with a flood of unpleasant subject matter in the 20-aughts.  I taught a couple of communications courses back then with Ahmed Rashid's Taliban (1st ed. 2000), for example.  Maybe ten years ago I gave my copy of the book to Goodwill, thinking it of only historical interest.  Now here we are.

That prompted me to wonder whether this Taliban is the same as that Taliban.  Is there any hope?  I noticed Taliban leaders on TV giving interviews to female reporters.  I wasn't the only one who noticed.  My academic colleague James Dorsey, my favorite commentator on MENA and author of the blog, The Turbulent World of Middle East Soccer, has published a commentary on point, in print and podcast.

Mideastsoccer · Defining change- Who are the Taliban that conquered Afghanistan

Spoiler alert, Dorsey does not reach the conclusion that this is somehow a kinder and gentler Taliban.  But at this point, we have to salvage any hope we can.

[UPDATE, Aug. 18.] A friend pointed me to this fundraising site, which is genuine: Support Afghan Guides and Fixers.  One of its organizers is Lupine Travel, a partner of mine and a solid UK-based enterprise.  

[UPDATE, Aug. 22.]  Check out this fascinating interview (Aug. 19) at PRI's The World with the exiled captain of Afghan women's soccer.

Tort liability brakes U.S. policy shift on Sudan, marks crossroads of past, future where Africa meets Arabia

Street corner in the Arabian Market district of Khartoum
(RJ Peltz-Steele CC BY-NC-SA 4.0)

With economic sanctions exacting an intensified toll amid the pandemic and humanitarian crises fraying the peace at political borders, 40 million people in the East African Republic of Sudan may hope that long awaited normalization of relations with the United States will bolster stability and produce prosperity.  Meanwhile, in Washington, American tort claims have thrown a wrench into the diplomatic works.

Smaller Sudan after 2011 (LouisianaFan CC BY-SA 3.0)

Unending War

Before its 2011 division into north and south, Sudan was the largest country in Africa.  Its location is strategically important.  Sudan borders Libya and Egypt to the north, the lifeline of the Nile flowing into the latter.  The country's Red Sea coast positions Port Sudan opposite Jeddah and Mecca.  Chad and the Central African Republic (CAR) sit to the west, and Eritrea and Ethiopia to the east—where more than 40,000 Ethiopian refugees have fled conflict and now strain Sudan's thin resources.  Tumultuous northern regions of the Democratic Republic of the Congo (DRC) and Uganda, the latter yielding the Nile, lie in reach of South Sudan's capital, Juba, along with a disputed stretch of border with Kenya.

At last abandoning imperial ambition in 1953, the British left Sudan to the tempest of regime rise-and-fall that tragically characterized post-colonial power vacuum in Africa.  The country declared itself independent in 1956, but for a quarter century, no one form of government would stick.  An Islamic state brought about some political consistency in 1983, but plenty of ills, too: reigniting civil war between north and south, and paving the path of three decades' dictatorship and an abysmal human rights record under President Omar al-Bashir, from 1989 to 2019.

Part of embassy bombing memorial in Dar es Salaam

(RJ Peltz-Steele CC BY-NC-SA 4.0)

Relations with the United States went from bad to worse after Sudan backed Iraq in the 1990-91 Gulf War.  Osama bin Laden took up residence in Khartoum for five years at that time.  He built a favorable reputation for philanthropy by building legitimate businesses and financing infrastructure projects, such as the main highway, named for him, linking Khartoum to Port Sudan.  In 1993, the United States listed Sudan as a state sponsor of terrorism.  Under U.S. pressure, Sudan expelled bin Laden in 1996.  But Sudan was not spared blame when al-Qaeda bombed the U.S. embassies in Tanzania and Kenya in 1998, killing 224 people, including 12 U.S. citizens, and injuring thousands.  U.S. retaliation included a cruise-missile strike against a Khartoum chemical plant—unfortunately and very likely a target accused erroneously of complicity in chemical weapons manufacture.

Ironically, the bin Laden-orchestrated terror attacks of September 11, 2001, set Sudan and the United States on a winding road of fits and starts toward reconciliation.  U.S. President George W. Bush recognized the need for American allies on the East African doorstep to the Middle East.  U.S. policy leveraged austere sanctions to incentivize Sudanese cooperation in counter-terrorism, and the Bashir regime was supportive.

Sudan needed help, too.  The civil war between the Islamic government in Khartoum and the Sudan People's Liberation Army (SPLA), started in 1983, had never ended.  The exhausting conflict, which ultimately cost more than 2 million civilian lives, was dragging into one of the longest civil wars in modern history—besides that it was really a sequel to the never-quite-resolved first Sudanese civil war of 1955 to 1972, another tragically typical consequence, in part, of arbitrary colonial political borders.  Multi-national diplomatic interventions helped at last to draw the war to a close in 2005.  The peace agreement led to the secession of South Sudan in 2011, a development that seemed promising at the time, but since has seen the two states teetering ceaselessly on the brink of combustion.

A spellbinding sampling of the human toll of the civil war can be found in Dave Eggers's What Is the What: The Autobiography of Valentino Achak Deng (2006).  Spanning events from 1983 to 2005, the book is an artfully novelized memoir of a real child refugee among Sudan's "lost boys."

In 2017, the Obama Administration further loosened sanctions on Sudan.  A coup in 2019 sent Bashir from office the same way he came in, and in 2020, Sudan reconstituted itself as a secular state.  Al-Bashir, 76, is now in prison for corruption.  Marking a significant policy reversal, the government has signaled that it might be willing to turn Bashir over to the International Criminal Court for prosecution in connection with the genocide in Darfur during the second civil war.  In October, the Trump administration moved to clear the way for U.S. businesses to reenter Sudan, bargaining the country's de-listing as a state sponsor of terrorism in exchange for Sudanese recognition of Israel.  The administration was accused of too-little-too-late effort to bolster its foreign policy portfolio in the run-up to the 2020 election, but, at this point, the end means more than the motive.

Persistent Perseverance

In short order, Sudan has transformed from war-torn religious state, ruled by a dictator accused of crimes against humanity, to secular constitutional democracy, pivotal in Middle East peace and primed for western commercial investment.  In other words, Sudan might be in the midst of a remarkably rapid transition from paradigmatic problematic state to African success story.

View of Khartoum and the Nile from Corinthia observation level
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Long acquainted with the hardships of war and sanctions, the Sudanese have persevered, developing a resilient infrastructure and an enviable standard of living, especially relative to neighbors such as the CAR, the DRC, and Eritrea.  Sudanese teens wield smartphones in the dustiest of wayside villages.  Sudan has oil and refining capacity, though the division of natural resources between north and south remains a key cause of simmering contention.  The Khartoum skyline is dotted with structures infamously financed by deliberate defiance of sanctions.  Representative is the Corinthia Hotel: opened in 2008, the oval-shaped building is called "Gaddafi's egg," because Libya paid for its €80m construction.

Wayside fuel and rest area, Shendi-Atbara Road, Al Buqayr
(RJ Peltz-Steele CC BY-NC-SA 4.0)

At present, Sudan has one arm tied behind its back.  Trucks sit idle in fuel queues.  Western credit cards don't work; cash is king.  For better and worse, local products, mostly MENA-manufactured, substitute for the usual globalized glut of soda and snack options in the convenience stores, excepting the universe's inexplicably irreducible constant, Coca-Cola.

If sanctions go away, an energizing flow of auto parts, industrial equipment, transnational banking services, and development of telecommunication and physical infrastructure will irrigate Sudan's thirsty landscape.  The new constitutional government will be boosted to a threshold on prosperity unprecedented in the nation's history.  Already in June, the UK announced a £150m commitment to ease democratic transition and coronavirus impact by combating inflation and poverty.  Sudan unbound stands poised to achieve African development in a region that's long been starved of a win.

But There's a Hitch

Tort liability in U.S. courts is presently a sticking point in negotiations over normalization of U.S.-Sudanese relations and the entry of American enterprise in Sudan.  In 1996, Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow civil lawsuits against foreign state actors for support of terrorism.  Survivors and families of victims of the 1998 embassy bombings sued Sudan in 2001.  The lawsuits floundered in the 20-aughts amid confusion over what plaintiffs, defendants, and causes of action Congress intended to authorize.  In 2008, Congress clarified the law on those questions and revived the earlier suits.

Subsequently, plaintiffs, numbering more than 700, won an award in federal court of $10.2bn, including $4.3bn in punitive damages.  The D.C. Circuit struck the punitive damages, doubting that Congress intended to authorize punitive recovery retroactively.  In May 2020, in Opati v. Republic of Sudan, the U.S. Supreme Court disagreed, vacating the striking of punitive damages and remanding for the lower courts to reconsider.  Litigation questions remain on remand.  The defense might yet challenge the constitutionality of the retroactive authorization of punitive damages, and it's not clear whether Congress intended foreign plaintiffs to be eligible for punitive awards.  Still, the massive compensatory award stands ripe for harvest.

Sen. Schumer in October (Senate Democrats CC BY 2.0)

All that litigation might, however, amount to naught if Congress acts again.  As a condition of the current agreement over sanctions and Israel, Sudan wants free of the Opati judgment.  In October, the State Department indicated willingness to negotiate immunity for Sudan against liability for past acts.  But that immunity would require another change of law, and Congress is not yet on board.

According to a report in Tuesday's New York Times, Sudan has offered a settlement of $335m, undoubtedly a more realistic number than multiple billions.  But Sudan has threatened to exit the agreement in whole if Congress doesn't authorize immunity by year's end.  Deadlocked legislators are trying to broker a compromise through a military spending bill in these first weeks of December.  To the displeasure of some in Congress, the working proposal would compensate U.S. citizens naturalized subsequently to the 1998 attacks less than those who were citizens at the time—working a de facto racial disparity.

Even if the 1998 claims can be resolved, a bigger hurdle looms in the prospect of blanket immunity-to-date for Sudan.  While Sudan did defend the embassy-bombing lawsuits on grounds of FSIA interpretation, it has not responded to the legal claims of, The Hill estimates, about 3,000 family members of September 11 victims who blame Sudan for bin Laden's five-year safe harbor there.  According to the New York Times story, those plaintiffs have the support of Senate leader Chuck Schumer (D-NY) to see that their claims are not extinguished.  It seems unlikely that a closely divided Congress would have any appetite to favor foreign tranquility over September 11 victims, no matter how much U.S. businesses are chomping at the bit to trade in Sudan.

Local heroes (with a smartphone) atop Jebel Barkal
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Last Week in Sudan

Here in the United States, if we hear about Sudan, it's likely to be in the context of civil war atrocities, the human rights abuses of the Bashir regime, or Middle East tensions.  Yet last week in Sudan, I saw little evidence of those worldly matters.  On the roads of Khartoum, in the markets, and in the countryside, I found only a gracious and warm people, a rich Nubian cultural tradition, and a stunning archaeological record of our shared human heritage.

Your interpid blogger at the Nuri Pyramids
(Steven Mueller CC BY-NC-SA 4.0)

Both of those views, the ugly and the beautiful, the grim and the genial, are Sudan.  We disregard the former at our hazard.  But to disregard the latter, we risk much more.

Sudan is the beating heart of the African continent.  Sudan will not forever be deterred by colonial legacy and the politics of aging superpowers.  However we manage to balance redress for past wrongs with a way forward, America will have to decide how to be a part of Sudan's future.  The only alternative will be to join the crumbling desert relics of Sudan's past. 

UPDATE, Dec. 13, 2020: See Conor Finnegan, Trump admin offered $700M to 9/11 victims to save Sudan deal, ABC News, Dec. 11, 2020.  UPDATE, Dec. 20, 2020: Sudan's Listing as Sponsor of Terrorism Ended by US, BBC, Dec. 14, 2020.

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.

A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.

The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

UIA Congress studies global legal issues: irresponsible journalism, anti-corruption in sport, and intellectual freedom in fashion

Just this week I returned from the annual world congress of the Union Internationale des Avocats, which did not disappoint.  Lawyers from around the world gathered in Toronto to exchange experiences and ideas on a range of cutting-edge themes.

Highlights of this year’s UIA for me included the media law and sports law panels.  The media law panel was coordinated by Emmanuel Pierrat, of Cabinet Pierrat, and Jean-Yves Dupeux, of Lussan & Associés, both in Paris.  The sports law panels were coordinated by Fernando Veiga Gomes, Abreu Advogados, Lisbon; Robert J. Caldwell, Kolesar and Leatham, Las Vegas; and Emanuel Macedo de Medeiros of the International Centre for Sport Security, an NGO based in Doha.

Liability for Journalism

The media law program asked panelists to examine how "irresponsible" and "responsible" journalism are faring in today's legal systems.  Thierry Bontinck of Daldewolf SCRL in Brussels ran through recent developments in the European Court of Human Rights.

We’ve always known that the European approach to freedom of expression is characterized more by balance than the presumption-rebuttal approach of the U.S. First Amendment.  That tension goes a long way to explain U.S. reluctance to enforce foreign libel judgments over the decades, a reluctance codified in the SPEECH Act during the Obama Administration.  But Bontinck’s analysis shows a recent trend in the ECtHR to further downplay the primacy of free speech, putting it on par with competing interests, such as privacy, fair trial, and law enforcement.

It is not clear to me whether this trend will further alienate Europe from fundamental rights analysis in U.S. constitutional law, or might be running in parallel to a trending subordination of free speech in our own courts.  Frankly I would welcome the change here were rights of reputation and privacy to elbow a little more room for themselves in our First Amendment law.  But I would be less eager to embrace a free speech trade-off with more abrupt implications of state power, such as surveillance by law enforcement.

Litigation against Saudi Arabia and the FBI

Also on the media law panel was Thomas Julin of Gunster Yoakley & Stewart, P.A., Miami.  Julin gave an expert overview of developments in American media law.  Yet most captivating was his update on the efforts of families to sue Saudi Arabia in S.D.N.Y. for September 11 losses, more than US$100bn in damages, under Congress’s remarkable waiver of the Saudis’ foreign sovereign immunity.

Julin represents the award-winning Florida journalist Dan Christensen in FOIA litigation against the FBI, now going to the Court of Appeals, for records related to 9-11 investigation of the Saudis.  Needless to say, plaintiffs in the New York litigation are carefully watching the collateral FOIA litigation, which could unlock a vault of evidence.

Julin pointed out that Saudi moves toward commercial and political liberalization, such as a planned IPO of the oil industry in New York and even the recent announcement that Saudi women would be allowed to drive cars, might be a function of U.S. liability exposure.

Whither Goes Sullivan?

In running down U.S. legal developments, Julin talked of course about the Hulk Hogan case, Bollea v. Gawker ($140m verdict, $31m settlement) and the Pink Slime settlement (Beef Products, Inc. v. ABC, Inc.).  Although the Pink Slime settlement was confidential, Julin said that SEC filings disclosed a $177m pay-out from ABC News parent Disney to the beef industry (on its $1.9bn claim), and that doesn’t include losses covered by insurance.  That might be the biggest defamation settlement in the world, ever, Julin noted.

From the audience, Jim Robinson of Best Hooper Lawyers, Melbourne, Australia, added to the mix Rebel Wilson’s record-setting A$4.57m win in Victoria.  All this led Julin to express some concern about whether New York Times v. Sullivan today carries waning cachet (a mixed blessing in my opinion).

Arbitration in Sport

In sports law, a first panel compared case outcomes across international dispute resolution systems.  Moderated by Caldwell, the panel comprised David Casserly of Kellerhals Carrard in Lausanne, Switzerland; Paul J. Greene of Global Sports Advocates, LLC, in Portland, Maine; Roman E. Stoykewych, senior counsel for the National Hockey League Players Association in Toronto; and Clifford J. Hendel of Araoz & Rueda in Madrid.

One case the panel examined involved the hit of NHL player Dennis Wideman on linesman Don Henderson in January 2016.  The video (e.g. SportsNet Canada) is not pretty, but it turns out there is much more than meets the eye.  In the video, at first blush, Wideman seems quite deliberately to hit the linesman from behind.


In context, however, Wideman was coming off of a concussive blow into the boards himself.  Stoykewych explained that Wideman was woozy, and what looks like a raising of his stick to strike Henderson can in fact be explained as a defensive maneuver whilst skating into an unidentifiable obstacle, if not a perceived opponent on the attack.  Casserly moreover suggested that Wideman’s plight might be likened to the exhausted fighter who inexplicably starts beating on an intervening referee.  The NHL rule on intentional strikes is all the more confounding, as it seems to define intent with an objective reasonableness test.

Ultimately the players’ union won reduction of Wideman’s heavy sanction to something like time served.  The case occasioned a vibrant discussion of evidentiary procedures, decision-making standards, and review standards in sport arbitration.  In the bigger picture, the case makes for a fascinating study of civil culpability standards and comparative dispute resolution mechanisms.

Integrity in Sport

Moderated by Macedo de Medeiros, the second sports law panel comprised Randy Aliment of Lewis Brisbois Bisgaard & Smith LLP in Seattle, Washington; Matthew Shuber of the Toronto Blue Jays Baseball Club; and Veiga Gomes.  The panel occasioned introduction of the Sport Integrity Global Alliance, a meta-organization born in 2015 to bolster integrity in global sport governance.  Not many people need to persuaded any longer, since the FIFA Sepp Blatter fiasco, of the problem of corruption in world sport.  Boston's and Hamburg’s disgruntled withdrawals from Olympic contention spoke volumes about skepticism of sporting mega-events, and I for one wonder at Eric Garcetti’s embrace of Olympic promise for Los Angeles.

Yet the corruption problem infects more than just the highest echelons of sport governance, as money filters through so many political layers and across so many social sectors.  Veiga Gomes illustrated for example:  Ninety percent of European footballs clubs do not publish their books, enjoying utter opacity in their accounting.  At the same time, 77% of European clubs are insolvent or “close to insolvent.”  Meanwhile, FIFA, UEFA, and the European football associations generate more than US$3bn in annual revenue.  So where is all that money going?  Thus, Veiga Gomes concluded, a “major transparency problem” renders football vulnerable to corruption and organized crime.

Strike a Pose

Though I was not able to spend as much time there as I liked, the UIA commissions on contract law, fashion law, and intellectual property law put on a fabulous full-day working session on “launching a fashion label business,” ranging across the areas of law practice implicated by a fashion-label client.  Sharing the helm of this ambitious program was an IP lawyer whom I admire, Gavin Llewellyn, of Stone King LLP, London. 

Taking part in the program was my friend and esteemed colleague from UMass Dartmouth Public Policy, Professor Nikolay Anguelov.  Dr. Anguelov talked essentially about the thesis of his book, The Dirty Side of the Garment Industry: Fast Fashion and Its Negative Impact on Environment and Society.  His talk made a vital and unusual contribution by making lawyers in the business think about the externalities of their commercial work in many dimensions, including social, economic, and environmental.  Credit to Llewellyn for bringing in Anguelov.

For every snippet of the fashion law program I was able to catch, I learned something.  My favorite takeaway was a discussion by Renata Beržanskienė, of the Sorainen law firm in Vilnius, Lithuania, about the “Jesus Jeans” case.  The case involves clothing and its advertising by the Robert Kalinkin fashion house.  Provocative images of a shirtless Jesus wearing Kalinkin jeans drew a public morals fine from the Lithuanian consumer protection authorities under national advertising law.  Presenting issues in free expression, commercial speech, and public authority to regulate morality, the case is pending before the European Court of Human Rights.

Compare Mark 4:14 (ERV) (“‘They will look and look but never really see.’”) with Jordache 1983 (“You’ve got the look.").