Politics & Policy

Unable Danger

Liable to sue? No way to run a war.

Veteran Army intelligence officer Lieutenant Colonel Anthony Shaffer claims that the Pentagon identified Mohammed Atta as a terrorist well before he led the September 11 hijackings. But, Shaffer says, there was no follow-up because lawyers were concerned about potential liability for the violation of privacy if something went wrong. This worry was prominent even though there was nothing illegal about the Pentagon cooperating with domestic law enforcement. Shaffer claims this liability concern left the FBI ignorant of Atta’s al Qaeda cell’s operations in the U.S., resulting in a missed opportunity to prevent the terrible events of September 11.

If Shaffer is right, this would be just another example of how our country’s litigation crisis costs us much more than the $246 billion per year that Tillinghast-Towers-Perrin has estimated are the direct costs of the nation’s tort system. Lawyers’ indiscriminate attacks–not just on wrongdoing, but also on socially beneficial behavior–have had adverse ripple effects on Americans’ health and safety.

For example, lawyers using bogus science have collected hundreds of millions by suing obstetricians for “causing” cerebral palsy through “malpractice.” Because the lawsuits have nothing to do with the ability of obstetricians to prevent cerebral palsy, the only thing they have deterred is obstetrical care. This might explain why–as a forthcoming American Enterprise Institute Liability Project monograph will show–states that have not adopted medical malpractice reform have higher infant mortality rates than states that have. In another forthcoming AEI Liability Project monograph, Professors Peter Rubin and Joanna Shepherd of Emory Law School study fatal accident rates and suggest that tort reform has saved 14,000 lives in the states that have implemented such laws by dampening the ripple effects from excessive litigation. Can we also attribute the 3,000 September 11 victims to the litigation crisis?

Perhaps not: Shaffer might be telling tall tales, or his description of the Able Danger program might be suffering from a common problem in litigation: cherry-picking hindsight. In a large organization, there are often mechanisms that produce warnings for hundreds of improbable events. It’s not uncommon for lawyers to find those warnings in the process of litigation discovery, show a jury and the world the ones that might have prevented a disaster, and then accuse the defendant of having failed to heed its own internal warnings. At the same time, the plaintiffs and the press will completely disregard the hundreds or thousands of warnings the corporation legitimately disregarded as false alarms, and no one will point out that taking preventative action on every one of these warnings would’ve completely paralyzed the defendant.

We should avoid that sort of selective reasoning here. Was Atta one of a handful of potential terrorists identified, or was his name buried in a list with thousands of false positives? We don’t know yet.

But, if Shaffer turns out to be right, it’s worth noting how plaintiffs’ lawyers might have contributed to the Able Danger failure. In September 11-related lawsuits, the plaintiffs’ bar has sued airlines, airports, architects, New York City, and Motorola (!). Trial lawyers might have extorted billions from legitimate businesses seeking to avoid the risk of a bankrupting judgment at trial had there not been a taxpayer bail-out of the September 11 victims in exchange for their agreement not to sue.

Trial lawyers have opportunistically capitalized on catastrophes in order to mine the deep pockets of big corporations. In a lawsuit stemming from an October 2001 incident where a man attacked a driver with a box cutter and caused the bus to crash, a jury held Greyhound liable for $8 million for one woman’s injuries. Why? The plaintiff’s attorney made much of an incident where one of Greyhound’s executives had raised the possibility of the use of driver partitions. Greyhound’s failure to implement this off-hand suggestion was used against them–never mind that no business operates like this, much less that the accident was intentionally caused by one of the bus crash fatalities.

We see this year the power of threatened lawsuits: faced with a roll of the dice at trial over a claim for $50 billion in damages, several banks have agreed to pay attorney Bill Lerach billions of dollars to avoid being sued over the Enron collapse. At less than a nickel on the dollar compared to the possible cost of a successful lawsuit, this is a small protection price for them to pay.

If Shaffer’s allegations hold water, should the lawyers be treated any differently than the defendants they attack? In my mind, fear of litigation may be a “but-for” cause without which September 11 would not have happened. Clearly, the fault for that catastrophe lies squarely with al Qaeda and the militant Islamists who deliberately chose to commit unspeakable atrocities. But it’s hard to avoid noticing that the logic of the trial lawyers– who regularly ask the judicial system to redistribute billions from bystanders’ deep pockets to those of the plaintiffs’ bar because of tenuous connections that skip over the worst wrongdoers–would hold the litigation lobby responsible for their role in creating a culture of fear that prevented the American government from doing its job to protect its citizens. This is not a double standard the American public should continue to tolerate.

Ted Frank is resident fellow at the American Enterprise Institute and director of the AEI Liability Project. He blogs at overlawyered.com.

Ted Frank is a Washington, D.C., attorney and director of the Center for Class Action Fairness at the Hamilton Lincoln Law Institute.

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