The recent horrendous murder of innocent civilians, including women and children, by an Army soldier in Afghanistan raises many questions as to how the United States will proceed once its investigation is completed. One of those questions involves compensation for the families of the dead and injured. Is there a legal vehicle which allows the American Army to pay damages to these families? Yes, there is. The Foreign Claims Act, 10 U.S.C. 2734, is a statute that allows payment for negligent or willful acts committed by U.S. service members in a foreign country whether the service member was acting in or out of the scope of his employment. Clearly the assailant here was not acting within the scope of his employment. Still the Foreign claims Act allows the United States to provide compensation to the surviving families. The law of the place of the injury (Afghanistan) will determine the nature and amount of damages. While combat claims are excluded under the Foreign Claims Act, these murders are arguably not covered by that exclusion because they were definitely not committed pursuant to combat operations.
Regardless of the ultimate disposition of the accused soldier’s case, the surviving families are still entitled to compensation under the Foreign Claims Act. In all likelihood the American military command, the State Department, and the Afghan government will work closely to arrive at a settlement satisfactory to all the parties knowing full well that no amount of money can compensate for the tremendous losses suffered. Fair and timely settlement will be an important component of trying to reestablish positive relations with the Afghan people.
A few weeks ago, two American Army officers were shot to death as they sat at their desks inside the Afghan Interior Ministry in Kabul, Afghanistan, apparently by a rogue Afghan security officer. The killer escaped and has not been apprehended. These murders followed a similar incident two days earlier when two U. S. soldiers were gunned down by an Afghan soldier in Eastern Afghanistan. This brings to 36 the number of American and NATO troops who have been killed by Afghans wearing official police or army uniforms in the last 13 months. While others must consider how these recurring incidents will impact NATO’s ongoing strategy and effort in Afghanistan, I would like to consider the legal ramifications for the families of these victims of terrorism. Can these families sue anyone or any entity to secure money damages for the loss of their loved one?
Because the Feres doctrine bars all military personnel from suing the United States for negligent and wrongful conduct resulting in injury or death, these victimized families have no cause of action against the United States, i.e., for negligent failure to provide for the safety of their soldier husband, father, or son. Likewise, the doctrine of sovereign immunity shields the government of Afghanistan from liability as well. There are statutes, however, that allow tort actions against the actual perpetrators and/or the terrorist organizations that sponsor them.
The Anti-Terrorism Act, 18 U.S.C. 2333, permits victims of torture or murder perpetrated as acts of “international terrorism” to recover damages in tort actions filed in United States federal court. This law applies to injuries sustained in the United States or abroad. This Anti-Terrorism Act allows plaintiffs to sue not only natural persons but also responsible organizations. Since the Taliban has claimed responsibility for virtually every killing described above, the families of the deceased soldiers could bring an action against this organization and seek treble damages. Of course, collecting on any judgment awarded is the major challenge.
There is a second statute that might also provide a cause of action in such cases. It is called The Torture Victim Protection Act, 28 U.S.C. 1350. This statute also provides remedies for acts of torture and murder. Ironically, the United States Supreme Court heard oral argument on February 28, 2012, in a case which challenges the applicability of this statute to terrorist organizations. In Asid Mohamad, et al. v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court must decide whether The Torture Victim Protection Act applies to both “individuals” AND organizations. There is no question that the statute applies to individuals who commits acts of torture and murder. Whether it applies to organizations is the question before the court.
What the two statutes above clearly provide is a cause of action for money damages against individuals who commit, aid, and abet the unlawful killing of American soldiers by their presumptive “allies.” While securing a judgment against the trigger man, and collecting on it, is highly unlikely, the possibility of doing so against an Afghan government official who aids and abets in such fratricide is indeed possible. For instance, in the case of the murdered Army officers there are serious unanswered questions as to how the gunman obtained access to one of the most secure venues in Kabul, i.e., the Afghan Interior Ministry. Moreover, how is it that the gunman was able to escape without detection? If a government official aided and abetted this terrorist act, then a presumptive case could be brought against him under the statutes described above. Given the corrupt nature of many Afghan officials and the huge sums they have pilfered from the United States, there is a very real possibility that money could be identified and extracted from such an accomplice to pay any judgment obtained against him.