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Tuesday, July 06, 2010

Media Matters backs Kagan's lies about 9/11 case: time for Volokh, Reynolds, Jacobson et al. to weigh in

Stare decisis means to follow precedent. The greatest contempt for stare decisis is seen when precedent is misrepresented. Then there is not even an attempt to come to grips with earlier rulings, just a pretence that they say the opposite of what they actually say, in the manner of Orwellian "Newspeak," allowing prior wisdom to be silently dispatched. It is the ultimate in intellectual thuggery.

Kagan did this in last year's 9/11 case. Now Media Matters (responding to Gateway Pundit's excerpt from my "Kagan lies" post) is doing the same thing in Kagan's defense.

The law at issue, the domestic tort exception to sovereign immunity, is one of the few civil court weapons available for fighting terrorism. With the Supreme Court's failure to review, Kagan's lies effectively remove this law from the books (starting with its application to 9/11). First she lied about the law itself, then she lied about precedent.

Media Matters analyst Adam Shah has nothing to say about our first charge: that Kagan lied about what the law says. Let's see why. Kagan claims that the exception:
...requires not merely that the foreign state’s extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5).
Kagan writes as if she is paraphrasing a condition that is stated in the law, which she gives as a citation for her claim, but look at the actual condition that is attached to her quoted phrase. The exception applies to:
... the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment. [Emphasis added.]
Nothing about the wrongful act having to occur domestically. Rather, the actual condition suggests the opposite: that the wrongful acts in question will typically occur on foreign soil. It designates the intended objects of suit as foreign governments themselves, and people who are employed by foreign countries, carrying the obvious expectation that they will typically be employed in foreign countries.

The only other requirement is that "money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States." That's it. Paragraph 5 of 28 U.S.C. 1605(a)(also known as "the domestic tort exception") is a single clause, consisting entirely of these 2 conditions: 1) domestic injury, 2) that originates within the scope of some foreign government office or employment. Kagan jettisons the requirement of foreign government employment and in a supposed paraphrase substitutes a near opposite: that the foreign employee's wrongful actions must transpire inside the United States.

Lies don't get more blatant than this, but instead of confronting Kagan's lies about the law, Mr. Shah does the Orwellian thing. He simply declines to look at the question of what the law actually says and addresses only our second charge: that Kagan lied about Supreme Court precedent. After all, the law only gives Shah a single clause to try to invert (an impossible task), while the subject of precedent gives him an entire Supreme Court ruling from which to snatch quotations that he can misrepresent the meaning of.

Shah's bait and switch

In her 9/11 brief, Kagan claimed that the Court in Amerada Hess "considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception," when in fact the injuries to the Amerada company ship occurred 5000 miles out to sea (where it was attacked by Argentina in the Falklands war). Far from considering and rejecting the domestic effects of Argentina's wrongdoing, the court ruled against the suit on the grounds that the injuries were not domestic: another flat lie by Elena Kagan.

In defense of Kagan, Shah asserts that:
Contrary to Hoft's claim that "there were no 'domestic effects' at issue in Amerada," the plaintiffs in Argentine Republic v. Amerada Hess Shipping Corp. did contend that the alleged tort had "domestic effects" and therefore should not be dismissed.
Well of course the plaintiffs contended that there were domestic effects. The whole basis of their suit was the far-fetched claim that, because the United States asserts some jurisdiction over events in the middle of ocean, that makes the middle of the ocean American territory. The Court disagreed (at 440):
In this case, the injury to respondents' ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred "in the United States." They point out that the FSIA defines "United States" as including all "territory and waters, continental and insular, subject to the jurisdiction of the United States," § 1603(c), and that their injury occurred on the high seas, which is within the admiralty jurisdiction of the United States, See The Plymouth, 3 Wall. 20, 36 (1866). They reason, therefore, that, "by statutory definition," petitioner's attack occurred in the United States. Brief for Respondents 50-51.

We find this logic unpersuasive. We construe the modifying phrase "continental and insular" to restrict the definition of United States to the continental United States and those islands that are part of the United States or its possessions; any other reading would render this phrase nugatory. Likewise, the term "waters" in § 1603(c) cannot reasonably be read to cover all waters over which United States courts might exercise jurisdiction. When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.
Mr. Shah never lets his readers know that the heart of the Amerada case is the question of whether an attack 5000 miles out to sea can be considered domestic. This allows him to pull a very sneaky bait-and-switch. After noting that the Amerada company "did contend that the alleged tort had 'domestic effects' and therefore should not be dismissed," he describes how "the Supreme Court specifically rejected that claim, as Kagan's brief said."

Wait a minute. Which claim is Shah saying was rejected by the Court? The Amerada company's claim that the Argentinean attack should be seen as domestic? Or the Amerada company's claim that if injuries occurred on American territory, then the domestic tort exception applies? The former is what the Court rejected. The latter is what Kagan falsely claims they rejected. By claiming that the court ruled as Kagan said, Adam Shah is repeating Kagan's lie. He is flat lying about what the Court ruled. It is a subtle lie, hidden behind an ambiguous reference, but in substance, it's the same whopper Kagan told.

Shah read the Court's full opinion. He knows full well what the Court rejected is the claim that the Argentinean attack was domestic, but his readers don't know, and he misleads them into thinking that the Court ruled that it didn't matter whether the Amerada company's ship was attacked here or abroad. Read the case, Media Matters followers. See how badly you have been duped. Shaw is defrauding all of the people who he claims are his allies. With friends like A.H.S., who needs enemies?

Pretending that a side discussion about secondary injuries applies to primary injuries

I did make one slight overstatement in my original post. I said that there were no domestic effects of the Argentinean attack on the Amerada company's ship, when the court did consider the possibility that there could have been some commercial effects that were direct enough to be actionable under a different provision of the FSIA law: the commercial tort exception. These possible effects were dismissed because the Amerada company had not sued under the commercial tort exception.

Shah finds in this side discussion a statement from the Court that he can mis-represent as supporting Kagan's claim that domestic injuries are not sufficient to satisfy the domestic tort exception (that the wrongful act that leads to the injuries also has to have been domestic):
The result in this case is not altered by the fact that petitioner's alleged tort may have had effects in the United States. [Amerada, at 441.]
Obviously the Court here is talking about secondary injuries. It is not talking about the damages to and aboard the Amerada company ship, or it would not be questioning whether the case would be altered if the injuries had been domestic.

So the primary injuries were not domestic? Doesn't that belie the Kagan/Shah claim that the Court ruled against the Amerada company because the domesticity of its injuries were not sufficient to qualify for suit under the domestic tort exception? Of course it does. After all, they are lying.

Unfortunately, standard legal shorthand does not distinguish between a harmful act and the injuries that it causes

Since most wrongful acts are coincident with the injuries they cause, legal language does not generally distinguish between the two. They just get lumped together as "the tort." This opens the door to willful misinterpretation in the rare case where the wrongful act and the injuries from it are separate in some legally meaningful way.

Consider the shorthand name for §1605(a)(5): "the domestic tort exception." This is not the actual name of the law. It is just what lawyers call it. Since the primary definition of a "tort" is a wrongful act, a "domestic tort exception" would seem to imply that the wrongful act has to occur domestically, but this seeming implication is not borne out. A look at the law shows that it includes no such requirement. Only the injuries are required to be domestic. Obviously the mere shorthand name for a code section carries no legal weight, but it can mislead the careless or the uninitiated, and it can be used to mislead the careless and the uninitiated.

This vulnerability crops up in the Amerada Court's side discussion about possible domestic commercial injuries stemming from the overseas attack on the Amerada company ship. Since there was no distinction to be made in Amerada between the wrongful attack and the injuries it caused (both occurring in the same location, 5000 miles out to sea), the Amerada Court falls into the common shorthand of referring to both a wrongful act and to the injuries it causes as "the tort":
But the noncommercial tort exception, § 1605(a)(5), upon which respondents rely, makes no mention of "territory outside the United States" or of "direct effects" in the United States. Congress' decision to use explicit language in § 1605(a)(2), and not to do so in § 1605(a)(5), indicates that the exception in § 1605(a)(5) covers only torts occurring within the territorial jurisdiction of the United States. [at 441.]
What the Court is saying here is that if Congress wanted domestic commercial effects from non-domestic attacks to be actionable under the domestic tort exception, it would have said so. By the same token, if it wanted the domestic tort exception to apply only when both the injuries from a wrongful act and the wrongful act itself both occur domestically, it would have said so. Yet Chief Justice Rehnquist's careless wording leaves him open to an opposite interpretation, clearly wrong in context, but highly misleading out of context. Just pretend that "torts" here refers specifically to the wrongful act, instead of being a sometimes inaccurate shorthand for both the act and the injuries from it. Then voila. The ruling says right there what Kagan claims it says:
§ 1605(a)(5) covers only [wrongful acts] occurring within the territorial jurisdiction of the United States.

Rehnquist's side discussion was merely restating the law, not interpreting it

Luckily, Justice Rehnquist's majority opinion in Amerada also took the time to describe the domestic tort exception on its own, and here he stated the limitation on the exception more carefully:
Section 1605(a)(5) is limited by its terms, however, to those cases in which the damage to or loss of property occurs in the United States.[At. 439.]
Note that this statement is virtually identical to what Rehnquist wrote in his discussion of commercial harms, except that the latter uses the shorthand "torts" in place of the more precise "damage to or loss of property." This almost word for word similarity, together with the lack of any account for the difference in language, proves that all Rehnquist was doing in his side discussion was restating the law for present reference. He was not interpreting the law.

If his intention was to add a requirement that both the wrongful act and the injuries from it had to occur domestically, he would have had to explain his change in language by making some argument as to why the wrongful act also had to occur domestically. That he presented no such argument clearly indicates that he intended no such interpretation. He was merely restating the law, somewhat carelessly substituting "tort" for "damages" because there was no distinction to be made between them in the present case. Surely he never contemplated that his describing a wrongful act and the injuries from it together as "the tort" in a case where they did occur together could be taken as precedent for a requirement that they must occur together (both domestically), when that question never even arose in the case at hand.

The ultimate non-judicial temperament

The way the shorthand use of "tort" is vulnerable to intentional misinterpretation shows how important intellectual honesty is to the law. To work their perverse alchemy, Kagan and Shah only need to take one shorthand usage out of context and gold is turned to lead. Rare Congressional wisdom is turned into a dead letter.

Any lawyer who is willing to pervert precedent so grotesquely obviously needs no excuse. Let loose on the Supreme Court, Kagan will simply rewrite precedent, statute law, and the Constitution, to suit her wont. To advance such a wanton destroyer to the Court is a monstrous evil.

It takes instinctive intellectual honesty to consistently conserve the understanding contained in precedent. Integrity will sometimes reverse precedent, but only when engagement with the understanding that precedent contains reveals how to understand better. Kagan, in contrast, will simply raze the edifice of precedent to the ground. She is Hugo Chavez. She is Barack Hussein Obama. She is Adam Shah, and every other JournoList Newspeaker.

Isn't everyone at Media Matters a JournoList, which entire enterprise was aimed at silently and systematically assassinating truth:
Weigel was explicitly urging his fellow J-Listers to engage in what Weigel’s buddies and fellow travelers like to call “epistemic closure,” to operate as a closed media ecosystem that excludes competing political narratives.
They don't want to engage the evidence against their presumptions. They want cover it up, in order to keep their idiot followers from exposure to reason and evidence, hence they answer every challenge with disinformation.

When that disinformation perverts the truth about law and precedent, legal scholars have an obligation to stand up for the truth in their field of expertise. The same goes for every field of expertise. It's just the law-blogger's turn this time.

Surely Volokh has some contributors who are conversant in the domestic tort exception, or Misters Hindraker, Johnson and Mirengoff could examine this most important clause sufficiently to spot a most glaring deception about it. Glenn? Hugh? Professor Jacobsen? Will any of these worthies please step to the plate? Or is Kagan to get away with fraudulently interpreting a primary terror war law down to a nullity, even when her fitness for the Supreme Court is standing for scrutiny in the Senate? If our law professors can't be bothered with a betrayal of this magnitude the disgrace will mark them all.

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