Lawsuits Could Impact Ability of Department of Defense to Work with U.S. Contractors in the Future

Thursday, 31 July 2003

"This is an important and chilling look at what may lie ahead," said Bill Reinsch, President of the National Foreign Trade Council, and Co-Chairman of USA*Engage. "The current spate of Alien Tort lawsuits has already strained U.S. relations with our allies and trading partners. If we continue down this path, more serious consequences could result."

While the U.S. Government cannot be sued directly, federal officials or contractors could be held liable in tort for combatant actions. A USG employee or contractor working in a high-risk law enforcement, intelligence, or military operation could be sued for his or her direct participation.

"Contactors are especially attractive magnets for lawsuits mounted by anti-war activists seeking to challenge U.S. policies, or by entrepreneurial attorneys looking for the nearest deep pocket," said Rosen. "If the current pace of litigation continues, it's only a matter of time before a disruptive verdict impairs the U.S. military's flexibility to counter security threats abroad."

Contractor risk often extends beyond what might be considered a traditional military setting, as they are widely used by federal agencies such as the CIA and DEA to provide logistical support and security.

"If private litigants can legally challenge the outcomes of U.S. military assistance, intelligence or counter-narcotics assistance programs, it will seriously undermine U.S. power and prestige," Rosen continued. "Depending on the invasiveness and notoriety of the lawsuits, foreign friends and allies might prefer not to cooperate with the U.S. for fear of a lawsuit."

While Rosen acknowledged that it is virtually impossible to predict all the potential effects of the ATS on combat and related national security activities given the unsettled nature of the law, he singled out the potential for arms proliferation problems as another likely risk.

"Most foreign buyers prefer U.S. arms and training because of the high standards of quality and reliability. If ATS litigation created a liability minefield for foreign states, this could undercut U.S. influence," he stated. "The ATS would not stop the customers from buying arms; only from buying them from the U.S. Government or from American companies."

While concerns over the negative impact of Alien Tort lawsuits could be eliminated by a Supreme Court ruling making clear that the ATS is strictly jurisdictional and that cases along the lines currently pending cannot be pursued, no such case appears imminent. Therefore, the white paper concludes with a recommendation for immediate remedial legislation to assure continuity of contractor support of U.S. military operations.

"The bizarre twists and turns that the ATS has taken since the mid-1990s are the results of creative advocacy by special interest groups and judicial adventurism by federal judges.

This has left U.S. defense contractors, and the ability of the U.S. military to perform at its peak, highly vulnerable to future ATS litigation. It's important that Congress take action," Rosen concluded.

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USA*ENGAGE is a coalition of over 670 small and large businesses, agriculture groups and trade associations working to seek alternatives to the proliferation of unilateral U.S. foreign policy sanctions and to promote the benefits of U.S. engagement abroad. For more information on USA*ENGAGE and the harmful effects of unilateral trade sanctions, visit the USA*ENGAGE web site at