MAKE THE BAD GUYS PAY
Essay
The ever more litigious nature of American society is starting to affect an unexpected area: foreign policy. Increasing numbers of individuals, both American and foreign, are now using U.S. courts to defend their rights under international law in ways impossible just a few years ago. The plaintiffs range from Holocaust survivors to terrorist victims to the inhabitants of tropical rain forests; the defendants include multinational corporations, foreign officials, and even governments. On the one hand, the trend is bringing to justice many long thought unaccountable. On the other, it is making the tricky process of American diplomacy harder than ever.
To the Editor:
Anne-Marie Slaughter and David Bosco confuse rather than clarify the proper role of Congress and the courts in the conduct of foreign policy ("Plaintiff's Diplomacy," September/October 2000).
First, the U.S. Constitution (Article I, Section 8, Clause 10) explicitly grants Congress the authority to define and punish violations of international law. Subsequent statutes and court decisions, such as the Alien Tort Statute of 1789, the 1964 Banco Nacional de Cuba case, and the 1996 Antiterrorism Act, have recognized Congress' right to use the courts to obtain such judgments.
The authors also wrongly portray the Clinton administration's role in the Flatow and Brothers to the Rescue cases. It's true that the White House did not directly espouse these claims. But President Clinton chose to sign the Antiterrorism Act in an elaborate ceremony on the White House lawn and then actively encouraged the victims of heinous acts committed by Iran and Cuba to pursue justice through the courts under the new law.
Finally, the authors' policy recommendation is counterproductive. The "plaintiff's diplomacy" proposal makes the innocent pay for the acts of the guilty. Establishing a compensation fund using U.S. tax revenues as seed money is unfair to taxpayers, unjust to the victims, and provides no disincentive for terrorists. And asking for voluntary payments from terrorist states seems naive and puts the debt burden on any future democratic government. In the Letelier case, for example, by the time payment was made, the terrorist-sponsoring government in Chile had fallen, and the burden of compensation had shifted to its democratically elected successor.
Instead, the United States should immediately impose liabilities on terrorism-sponsoring governments by freezing their assets in the United States. I agree with the authors that the executive branch should remain dominant in the conduct of foreign policy. But let us remember to make the bad guys pay. To argue that such a policy would make terrorists "defensive" is nothing short of appeasement.
GARY SHIFFMAN
Former Staff Member, U.S. Senate Republican Conference
Sign-up for free weekly updates from ForeignAffairs.com.