Wednesday, August 12, 2009
Elizabeth Bahr on Foreign Sovereign Immunities Act and Compensation of Military Victims of War on Terror
Elizabeth Bahr of George Mason Law School has posted to SSRN her Comment, Is the Gavel Mightier than the Sword? Fighting Terrorism in American Courts: The Problematic Implications of Using the Foreign Sovereign Immunities Act to Compensate Military Victims of America’s War on Terror, 15 Geo. Mason L. Rev. 1115 (2008). Here's the abstract:
This Comment examines the holding of Rux v. Republic of Sudan in light of other successful judgments under the Foreign Sovereign Immunities Act's (FSIA) Terrorism Exception, with a focused emphasis as to whether it is sound policy and law to allow service-members, or their surviving family members, to recover monetary judgments against foreign states during a time of war. By examining the principles of sovereign immunity as elucidated in both the Federal Tort Claims Act (“FTCA”) and FSIA, this Comment argues that allowing U.S. service-members to recover monetary judgments against foreign states for injuries incurred during war interferes with the constitutionally granted executive powers of the President by frustrating U.S. foreign policy efforts, and significantly undermines the President’s role as Commander in Chief of the U.S. military. Allowing service-members to recover monetary judgments under FSIA’s Terrorism Exception could also have an extremely negative impact on the military itself; permitting the unjustifiable discrimination between the types of recovery different service-members could collect if injured could drastically affect the morale of the very troops the United States is relying on to fight this war on terror.