In thinking about the War on Terror's impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended longstanding norms, much as it has done in the public law context.
Case law construing the private right of action under the Antiterrorism Act of 1992, 18 U.S. C. [section] 2333(a) ("Section 2333 "), shines the brightest light on this trend. Using Section 2333, private individuals can bring civil suits against third-parties for injuries purportedly resulting from violence committed by terrorist groups. In deciding these cases, which sound in intentional torts, many courts have treated Section 2333 as a critical component of U.S. counterterrorism efforts. This marriage of tort law and national security has transformed Section 2333 into anything but the traditional tort Congress intended it to be. In the process, a line of jurisprudence has developed under the statute, which carries negative implications for the discipline of torts writ large, reinforces the War on Terror's ideologically-infused narratives about terrorism itself, and ensnares defendants with little to no meaningful connection with terrorism or terrorist groups.
These consequences, which have largely gone unnoticed by both tort scholars and critics of U.S. counterterrorism efforts, are important ones. They highlight the ways America's never-ending war has not only undermined public, but also private, law, and underscore how torts, in particular, have helped perpetuate the political ideology at the root of that battle. This Article seeks to uncover and explain these trends, for the first time, and offer some preliminary solutions.
TABLE OF CONTENTS INTRODUCTION I. THE WAR ON TERROR IS UNDERMINING NOT JUST PUBLIC, BUT ALSO PRIVATE, LAW A. Intentional Torts--Generally 1. Intentional Torts--Scienter 2. Intentional Torts--Causation B. Theories of Tort Law 1. The Economic Theory of Tort Law 2. The Corrective Justice Theory of Tort Law II. SECTION 2333 AS AN EXCEPTIONAL INTENTIONAL TORT A. Background on the Criminal Material Support Statutes B. Section 2333's Exceptionality 1. Section 2333 's Exceptional Scienter Requirement a. An Independent Scienter Requirement under Section 2333 b. Importing Scienter from the Criminal Material Support Statutes i. Importing Section 2339B's Mens Rea Standard ii. Importing Section 2339A's Mens Rea Standard c. A Hybrid Approach: Establishing Scienter under Both the Civil and Criminal Statutes d. Departing from Traditional Scienter Principles 2. Section 2333 's Exceptional Causation Requirement a. Legal Causation under Section 2333 b. Departing from Traditional Causation Principles 3. How Section 2333 Defies Theories of Tort Law a. The Economic Theory of Tort Law b. Corrective Justice Theory of Tort Law 4. Limitless Liability III. HOW SECTION 2333 CASES MAY ERODE TORT LAW A. Section 2333 's Potential Impact on Tort Law's Coherence and Clarity B. Section 2333 as an Extreme Crimtort IV. HOW SECTION 2333 HAS BEEN IMPACTED BY THE WAR ON TERROR A. Views about Terrorism's "Unique, Existential" Threat & Their Impact on Section 2333 Cases B. Manipulating the ATA 's Legislative History CONCLUSION INTRODUCTION
In cataloguing the War on Terror's impact on U.S. law, what usually comes to mind are its corrosive effects on public law, including on constitutional liberties, principles of criminal liability, and the development of immigration law and policy. What is typically less appreciated, however, is how terrorism policy has also eroded private law. Much as it has done in the public law context, the War on Terror has had a negative impact on private law, specifically on torts, where it has upended long-standing norms. Case law construing the private right of action under the Antiterrorism Act of 1992 (ATA), (1) 18 U.S.C. [section] 2333(a) ("Section 2333" or "civil statute" or "civil material support statute"), shines the brightest light on this dynamic.
Since September 11th, 2001, the U.S. government has increasingly used criminal prosecutions under the ATA as a key part of its courtroom battle against terrorism. (2) Through Section 2333, private plaintiffs have joined in this war. (3) Using this law, "[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors or heirs, may sue therefor in any appropriate district court of the United States." (4) As reflected by its legislative history, the civil statute, which sounds in intentional torts, is designed to subvert terrorism by imposing "[tort] liability at any point along the causal chain." (5) The statute provides for substantial monetary recovery, including treble damages, attorney's fees, and litigation costs. (6)
In the years since the War on Terror began, thousands of private plaintiffs have used Section 2333 to bring cases for injuries purportedly resulting from terrorist activities. Their targets have been entities and individuals who allegedly violated the ATA's criminal terrorism laws, specifically 18 U.S.C. [section] 2339A (Section 2339A) and 18 U.S.C. [section] 2339B (Section 2339B) (collectively "criminal material support statutes" or "criminal statutes"). (7) Sections 2339A and 2339B, which prohibit "material support" for terrorism, are aimed at third-party contributors that have allegedly engaged in activities, ranging from monetary support to educational training, in aid of terrorist groups or activities. (8) A typical Section 2333 case, for example, involves a defendant bank accused of providing financial services to an entity which is allegedly affiliated with a terrorist group that caused plaintiffs injuries. As with most cases under Section 2333, these suits are often based on underlying violations of one or both criminal provisions, each of which may qualify as "acts of international terrorism" under the civil statute. (9)
In adjudicating these cases, courts have described Section 2333 both as embracing "general principles of tort law," and as critically important to the U.S. government's battle against terrorism. (10) This marriage of tort law and the War on Terror has, however, transformed Section 2333 into anything but the typical tort Congress intended it to be. (11) Its byproduct is a line of jurisprudence that carries negative implications for the discipline of torts writ large, reinforces the War on Terror's politically-infused narratives about the nature of terrorism, itself, and often ensnares defendants with little to no meaningful connection to terrorism or terrorist groups.
These dynamics, which have been steadily developing since 9/11, have gone largely unnoticed by both tort scholars and critics of U.S. counterterrorism efforts. They are, however, critically important. They highlight how the War on Terror is undermining not just public, but also private, law, underscore how particular views about terrorism, grounded more in ideology than empirics, are facilitating this process, and demonstrate how private law, specifically torts, is helping to further that normative position. This Article seeks to uncover and explain these trends, for the first time, and offer some preliminary solutions.
At the heart of the War on Terror's impact on tort law is Section 2333's evisceration of scienter and causation--two key components of any intentional tort claim. Typically, to succeed on an intentional tort, plaintiff must establish that defendant possessed two kinds of intention or "scienter": to both commit the act in question and bring about its consequences. (12) Plaintiff must also show that defendant's actions were causally connected to her injury, as a matter of fact ("factual causation") and law ("legal causation"). (13)
When courts first began to interpret Section 2333, they applied most of these traditional elements. Though nearly all courts took the radical step of eliminating factual causation, most required that defendant possess both kinds of scienter and satisfy the requirements of legal cause. As time passed, however, many courts abandoned their commitment to these norms and adopted more expansive approaches to the statute. While continuing to describe Section 2333 as a traditional intentional tort, (14) these courts began to shy away from demanding that defendant intend both to commit the act (providing material support to a terrorist organization or its activities) and produce the consequences of the act (terrorist violence), and, instead, required only that defendant possess mens rea, though arguably diminished, for committing the act itself. A number of courts also effectively eliminated legal causation in cases where support allegedly went directly to a terrorist organization, its agents, or alter-egos (as opposed to another entity, like a state sponsor of terrorism'5).
By gutting the requirements of scienter and causation, Section 2333 jurisprudence has departed significantly from the norms of intentional tort law (16) in ways that cannot be explained by prevailing tort law theories. (17) This situation threatens to undermine tort law in several ways. First, it could have a negative, long-term impact on tort law's coherence and consistency. A notoriously convoluted area, the discipline of torts is known for being less than precise, particularly in defining basic concepts. With courts continuing to describe Section 2333 as a typical intentional tort, while treating it exceptionally, the statute's unusual jurisprudence could exacerbate and fuel existing confusion over the proper role of foundational elements, like scienter and causation, in other kinds of intentional tort cases.