Jewish World Review Feb. 5, 2002 / 23 Shevat, 5762
Legal Lesson for Afghanistan: War's Not a Slip-and-Fall Case
AFTER months of "daisy cutters," B-52 bombings and lightning special operation raids, the United States has deployed its most destructive weapon: The lawyers have landed in Afghanistan.
Some Afghan citizens have decided to take that most American of measures by suing Al Qaeda. At the same time, Global Exchange, a San Francisco-based public advocacy group, has demanded compensation from the United States for unintended victims of the bombing in Afghanistan.
It seems that Afghanistan has finally arrived as a modern nation, serving papers on friend and foe alike. The Women's Alliance for Peace and Human Rights in Afghanistan can hardly be faulted for pursuing a lawsuit against Al Qaeda for damages. But most experienced attorneys would view such a suit as having little promise of a return on investment.
Al Qaeda is not some deep-pocket defendant like Enron, with fixed assets to liquidate beyond a few caves with splendid views of Tora Bora.
Even if the alliance prevailed, it would take years to secure limited money that would have to be shared with rival claimants.
Yet that lawsuit would at least focus on the truly culpable. In contrast, Global Exchange is seeking reparations for Afghan citizens injured as a result of a U.S. campaign to free their country from tyranny--money in addition to the billions in aid already pledged for Afghanistan.
While Global Exchange thus far has pursued relief through Congress and the State Department rather than the courts, its claims are premised on a flawed concept of responsibility and reparations.
For centuries, it has been accepted that damage caused in wartime cannot be claimed as injuries deserving compensation.
During World War II, whole civilian populations were carpet-bombed, not accidentally but intentionally. Citizens of Coventry, England, sued their own country for damages stemming from bombing by the German Luftwaffe. The suit came after the people learned that, due to the breaking of the German Enigma code, Prime Minister Winston Churchill knew in advance of the bombing but did not warn or evacuate citizens to avoid alerting the Germans that the code had been broken. The citizens' claims were rejected as the bitter fortunes of war.
By definition, war requires a certain level of destruction, and combatants are not required to treat every invasion like a massive slip-and-fall case.
There have been limited circumstances in which the U.S. government has agreed to pay damages even though it wasn't required to. These primarily have been cases in which individuals were injured in peacetime by military negligence.
Thus, when a Japanese fishing boat was exposed to radiation during the testing of an atomic bomb or an Iranian airliner was mistakenly shot down by a U.S. warship, the U.S. paid compensation.
The closest precedent for any Afghan claimants is Grenada, in which the U.S. government agreed to pay $1.6 million to people harmed in the military invasion.
The compensation was a mistake. It is one thing to allow families to receive general humanitarian aid. It is quite another to "compensate" for our actions.
Nineteen American soldiers were killed and 115 injured in our rescue of American citizens in Grenada.
This was not some misdeed for which we should have paid compensation.
Such finer points are unlikely to concern Global Exchange, which appears to hold a rather twisted view of the United States.
The group's Web site denounces our legal system and says the U.S. government is responsible for the "torture and physical abuse of immigrants" while sealing our borders against illegal aliens.
This does not mean that the U.S. should not help people left destitute by war.
In Afghanistan, such aid is already flowing, but families will be helped as part of a general humanitarian effort regardless of whether they were harmed by an errant bomb or, more commonly, by Taliban abuses.
There is an important principle that must guide our aid. To paraphrase Charles Cotesworth Pinckney, one of our founders: billions for charity but not a cent for
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.
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© 2002, Jonathan Turley