Sovereign immunity and informant defectors: the United States' refusal to protect its protectors.

Extract

---

Sovereign immunity and informant defectors: the United States' refusal to protect its protectors.

INTRODUCTION I. THE STORY OF ADNAN AWAD: FROM TERRORIST, TO HERO, TO VICTIM II. THE ARGUMENTS FOR AND AGAINST SOVEREIGN IMMUNITY A. Justifications for Sovereign Immunity' s Continuing Role in American Law B. Arguments Against Sovereign Immunity's Continuing Role in American Law III. CONGRESSIONAL AND JUDICIAL "WAIVERS" OF SOVEREIGN IMMUNITY: HOW ADNAN AWAD ALMOST RECEIVED JUSTICE A. Congressional Waivers of Sovereign Immunity: Awad's Claims Against the United States B. A Judicial "Waiver" of Sovereign Immunity: Awad's Claims Against Federal Officials in Their Individual Capacities IV. SUGGESTED CONGRESSIONAL AND JUDICIAL MEASURES TO PRECLUDE FURTHER INJUSTICE AND TO BOLSTER THE GOVERNMENT'S ABILITY TO FIGHT TERROR A. Justifications for Changing the Current System: Unnecessary Injustice and National Security Concerns B. Potential Congressional Measures To Remedy the Situation C. Potential Judicial Measures To Remedy the Situation CONCLUSION INTRODUCTION

Once labeled the "highest-ranking Iraqi terrorist ever to defect to the West," (1) and still considered "one of the true heroes in the international battle against terrorism," (2) Adnan Awad risked his life and sacrificed his past to help the United States in its fight against terrorism. Backing out of a terrorist mission, Awad turned himself in at an American embassy, joined the Witness Protection Program (WPP), and assisted U.S. government officials in thwarting terrorist plots, identifying Iraqi terrorists, and securing a verdict against a prominent terrorist. (3) Despite all of this assistance, the government did not give Awad a hero's welcome. Instead, it repaid him with mistreatment and broken promises for which, Awad discovered, there would be no legal remedy.

Already a victim of injustice at the hands of government officials charged with his well-being, Awad also became a victim of sovereign immunity--the age-old doctrine stating that the United States, as "the sovereign," cannot be sued without its consent. (4) When Congress passed the Tucker Act (5) and the Federal Tort Claims Act (FTCA), (6) it arguably gave Awad the green light he needed to bring his case against the government. Nevertheless, decades of judicial interpretation have eroded these congressional acts in ways that precluded Awad from enforcing his rights against the United States. Moreover, even though the Supreme Court has held that, in some instances, potential plaintiffs can bypass the restraints of sovereign immunity by bringing actions against individual government officials through a "Bivens claim," (7) Awad could not meet the stringent standards for stating a cognizable Bivens claim.

While Awad's story naturally evokes sympathy for the individual and frustration with the government officials he encountered and the legal system that refused to vindicate his rights, the ramifications of that story extend far beyond Awad's personal plight for justice. As long as the war on terror remains a prominent national concern, the willing cooperation of individuals such as Awad will be an invaluable asset for government officials seeking to protect this country. Unless the government improves its track record for dealing with these informants, it will likely suffer a "diminish[ed] ability to bring these individuals to our side and to protect the world from terrorist acts," (8) putting us all at risk.

Part I of this Note provides a detailed account of Awad's story, which ends with the doctrine of sovereign immunity precluding his claims for relief against the government. Part II gives a brief description of the doctrine of sovereign immunity and presents the common arguments for and against its continued vitality in today's legal system. Part III explores the areas in which Congress and the Supreme Court have weakened the doctrine of sovereign immunity in ways that have almost, but not quite, opened the courthouse doors to Awad. Part IV concludes that something must be done to ensure that Awad's story is not repeated and offers suggestions for both congressional and judicial actions that could achieve the desired result.

I. THE STORY OF ADNAN AWAD: FROM TERRORIST, TO HERO, TO VICTIM

Born in Palestine in 1942, Awad and his family relocated to Syria following the 1948 Arab-Israeli War. (9) Awad's frustrations with oppressive, mendacious governments began during his obligatory stint with the Palestine Liberation Organization. (10) Becoming openly critical of the Syrian government after completing his five-year commitment, he was pressured to leave the country and eventually immigrated to Iraq in 1980. (11) Starting out as a lowly trucker, Awad worked his way up and eventually purchased a lucrative construction company. (12) Recalling this highpoint, Awad commented, "I had more than two million dollars in the bank, five cars, a house, and a beautiful young girlfriend. Everything would have been fine, but I met up with stupid people." (13)

The first "stupid person" Awad met was Mo...

See the full content of this document

---