Law & the Courts

The Foolish GOP Proposal to Open China to American Lawsuits over COVID-19

Senator Martha McSally (R-AZ) speaks in Washington, March 6, 2019. (Joshua Roberts/Reuters)
The bill introduced by Senators Marsha Blackburn and Martha McSally, however well-intentioned, would have disastrous consequences.

Some terrible ideas never go away, especially ideas that help politicians to disguise weakness as strength. One such scheme in the Beltway bag of tricks is the proposal to “punish” a hostile foreign power by allowing it to be sued in court.

Senators Marsha Blackburn (R., Tenn.) and Martha McSally (R., Ariz.) are the latest to try this tactic, proposing a bill that would allow Americans harmed by the coronavirus — or their estates if they have died from it — to sue China for damages. To pave the way, Senators Blackburn and McSally would strip of sovereign immunity any foreign state (i.e., China) that even accidentally discharges a biological agent upon the world.

Sounds ferocious, right? Except no American victim would actually get compensation, because Beijing would, of course, ignore the lawsuits . . . except to exploit them as a (further) excuse not to cooperate with American and foreign investigations; as a further basis not to honor its treaty obligations; as a reason to step up its aggression in the Far East; and as a rationale for retaliating by encouraging other countries to strip sovereign immunity from the United States, so that our nation and officials may be sued and indicted for harms real and imagined abroad.

This is foolish on so many levels it is tough to know where to begin.

Great powers should never pretend that national-security challenges are mere litigation matters. Throughout the Clinton and Obama years, Republicans rightly argued that Democratic administrations were recklessly treating international terrorist organizations, aided and abetted by hostile foreign governments, as if they were just a crime problem. Most prominently, al-Qaeda considered itself at war with the United States, projecting force on a par with a nation’s and mass-murdering Americans. Yet, our government treated it as if it could be quelled by indictments, subpoenas, asset forfeitures, and other legal maneuvers — court cases in which the murderous group enjoyed the presumption of innocence, assistance of counsel, copious discovery of government intelligence files, and so on.

This approach emboldened our enemies. It told them that we lacked the will for combat, intelligence activities, and governmental seizures of territory and treasure. We were content, instead, with the simulacrum of national defense: high-profile court proceedings that, far from posing a meaningful deterrent, encouraged more attacks.

Such proceedings are an exquisite way for a government to choreograph the appearance of action — arrests (cum press conference vows to bring our foes “to justice”) followed by indictments (more press conferences), hearings, long trials, and harsh sentences. The months turn into years of media coverage. It can make a few mostly low-level defendants look like a caliph’s army. People may not notice that we’ve actually hauled into court only a handful of foreign operatives, all of whom the enemy has long since replaced as it continues its hostile operations.

In the interim, the enemy has hit us again and again, realizing it has relative immunity: We’re relying on lawsuits while its hierarchy orchestrates forcible attacks from overseas safe havens, outside the jurisdiction of our police and courts. As I recounted in Willful Blindness, in the eight years between the bombing of the World Trade Center in 1993 and its 2001 destruction, our enemies plotted repeated attacks against our country, targeting skyscrapers, military installations, embassies, and a naval destroyer. Our response was courtroom prosecution. It looked like a vigorous, sustained effort but, in the end, we convicted a grand total of 29 mostly low-level terrorists — the few we could get our hands on. It was not until after the shocking 9/11 attacks that President Bush sought, and Congress enacted, an authorization of military operations that resulted in decisive attacks on the enemy’s safe havens. Purposeful diplomatic warnings, at least for a time, discouraged rogue state sponsors of terrorism.

Making lawsuits the response to foreign provocations also distorts governmental responsibilities. The courts do not have a national-security function. In our system, the defense of the nation is committed to the political branches that are accountable to the American people whose lives are at stake. It is the president and Congress who are supposed to deal with provocations by foreign powers, using diplomatic, military, intelligence, and other government capabilities to seek accommodations — including any monetary compensation for victims of willful or accidental harms.

We quite intentionally insulate our courts from this political role. The judiciary’s duty is not to safeguard the public; it is to ensure that parties in court cases are afforded the law’s due-process safeguards. A bill that makes the judiciary responsible for responding to and punishing China over the COVID-19 disaster is a bill that takes that responsibility away from the political branches where it rightfully resides, and gives it to the non-political branch charged with protecting China’s rights as a litigant. That would not be most Americans’ idea of justice.

And then there is the reciprocity problem.

No nation is more active on the world stage than the United States. No nation, then, has more interest in upholding the doctrine of sovereign immunity than ours. We are deeply involved in overt military operations and covert intelligence operations; our diplomatic officers, as well as our other appointed and elected officials, play a decisive role in policies that dramatically affect people in other countries, mostly for the good, but sometimes for ill, including lethal ill. Sovereign immunity from liability in court proceedings prevents American officials and operatives from being hauled into foreign courts, ensuring that disputes among foreign powers are handled diplomatically.

How much would the rogue regimes in China, Russia, and Iran love a world in which the United States, the defender of the international order, undermined the basic protections of that order? How much would they exploit the implicit invitation to use the kangaroo courts of their vassals as a weapon against the West? No one should know better than Senator McSally, a heroic veteran Air Force officer and combat pilot, that if sovereign immunity were eroded, American operatives who act in American interests overseas would be vulnerable to foreign prosecution. Their ability to travel internationally would be paralyzed by the threat of arrest.

The precedent would be terrible in another way, too. Sovereign immunity protects American officials from even intentional harm caused to other countries. The Blackburn/McSally bill, by contrast, would make China liable in U.S. courts even if the harm it caused was unintentional — i.e., even if, as seems highly plausible, the coronavirus was unleashed in a lab accident.

While China’s misfeasance was probably unintentional, its cover-up has been the opposite: willful and insidious. Day after day come righteous complaints from U.S. lawmakers and American officials that Beijing’s lack of transparency is costing us the time and data that we need to save lives. What incentive, exactly, would China have to be transparent — to act against its own totalitarian, paranoid, insular nature — if disclosure were guaranteed to result in its being sued by thousands of American claimants, whose lawyers would spread that information far and wide in civil complaints designed to frame its actions in the worst possible light?

Furthermore, let’s bear in mind that no nation on earth is as active as ours in scientific research on substances whose accidental mishandling — let alone purposeful deployment — could have catastrophic consequences. No nation on earth is as active as ours in humanitarian interventions that, however well-intentioned, sometimes result in considerable collateral damage. Do we really want to encourage the adoption of a principle that sovereign immunity from lawsuits should be denied to a country that was acting within its legitimate rights if its actions caused unintentional harm?

The United States would be a safer place if we shed the green eye shades and rose-tinted glasses, stopped regarding China as a coveted market and potential strategic partner, and started seeing it for what it is: a hostile, aggressive power that seeks to displace us on the world stage.

If there is a silver lining in the COVID-19 catastrophe, it is this moment of clarity. We should now realize that the best path ahead involves severing our complex tangle of financial and commercial relations with Beijing, and publicly shoring up our support for Taiwan, Hong Kong, Japan, South Korea, and other regional allies menaced by China. Perhaps President Trump could stop referring to the monstrous Xi Jinping as if he were a friend, and to Xi’s regime as if its intentions were benign. We don’t court war, but we do want to make clear that we can tell our friends from our foes and act accordingly.

China has much to answer for. We should be in aggressive diplomatic negotiations, working with like-minded nations to demand those answers. Our government should seek compensation for Americans harmed by China’s negligence in allowing the pandemic to spread and covering it up — a tall diplomatic order when we are concurrently seeking cooperation and reasonably civil relations. But enabling lawsuits is the wrong way to go about that task.

The United States must protect sovereign immunity, not degrade it by political gestures that, however well-intentioned, could embolden Beijing and make U.S. officials vulnerable without actually helping a single American.

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