Terror by Trial Lawyer

· By WILLIAM MCGURN

If you think it's outrageous that Navy SEALs who helped capture one of Iraq's most wanted terrorists now face court-martial on charges they roughed him up, just wait. It may get worse. Tomorrow morning, the Senate Judiciary Committee will hold a hearing on a bill introduced by Arlen Specter (D., Pa.) that would make it easier for terrorists to sue military and federal law-enforcement officials.

That's not Mr. Specter's intent, of course. It would, however, be the effect of a bill that only a trial lawyer could love: the Notice Pleading Restoration Act of 2009. If successful, it would undo a recent Supreme Court ruling that gave us this common sense standard: Before you can sue someone, you have to have a plausible claim they did something wrong.

Mr. Specter, a former trial lawyer, finds the plausibility standard onerous. The reason has to do with the discovery process. Rightly used, discovery allows lawyers from both sides to gain access to evidence—documents, email, depositions, etc.—that support their case. In practice it can be abused, as when lawyers use discovery to go fishing for a case they don't have. And because compliance alone can be expensive and time-consuming, many companies find it cheaper to settle.

Greg Garre, a former solicitor general for the Bush administration who will testify at tomorrow's hearing, puts it this way: "If passed and signed into law, the bill would drive a truck through the Supreme Court ruling and dramatically lower the standards for pleading lawsuits."

When Mr. Specter introduced his bill in July, he said that insisting on plausible evidence before a lawsuit can proceed will "deny many plaintiffs with meritorious claims access to the Federal courts." So he aims to reverse the standard: Unless the Court has absolute proof that a claim will not succeed, his bill would effectively waive it through. There may be another, less altruistic interest: At a time when Mr. Specter is in a tough primary fight in his new party, he needs all the generosity he can get from his supporters in the plaintiff's bar.

The U.S. Chamber of Commerce naturally opposes the bill, saying it would impose a hefty "litigation tax" on American business and encourage frivolous lawsuits. But where do the terrorists come in?

The answer goes back to the original Supreme Court ruling this bill hopes to overturn. That case involved Javaid Iqbal, a Pakistani Muslim who was arrested in the days after Sept. 11, 2001, designated a person of "high interest," and detained under restrictive conditions. After pleading guilty to criminal charges and serving time, he was released and sent back to Pakistan.

Once free, Mr. Iqbal filed a lawsuit against more than three dozen federal officials and corrections officers. That included everyone from the warden and the guards outside his cell to former Attorney General John Ashcroft and FBI Director Robert Mueller. The complaint alleged that Messrs. Ashcroft and Mueller discriminated against him based on race, religion or national origin.

The Supreme Court limited itself to the charges against Messrs. Ashcroft and Mueller. The ruling came down to this: While Mr. Iqbal was free to sue those who he says abused him, he needed to show his allegations were plausible. Writing for the majority, Justice Anthony Kennedy defined a plausible claim as "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

That may not sound like much, but consider the alternative. We know that al Qaeda operatives are trained to claim abuse when they are captured. If Mr. Specter's legislation succeeds, what is to prevent them from alleging all sorts of violations so they can go on discovery expeditions against, say, Gen. David Petraeus or Defense Secretary Robert Gates? And how would that affect the ability of these men to prosecute the war?

Justice Kennedy made this point when he wrote about the "heavy costs" imposed on government officials trying to do their jobs. These costs, he noted, "are only magnified when Government officials are charged with responding to, as Judge [Jose] Cabranes aptly put it, 'a national and international security emergency unprecedented in the history of the American Republic.'"

As bad as this bill is, it's an opportunity for Barack Obama. When he speaks at West Point this evening, he will ask for support for his new strategy for Afghanistan. With many Americans still reeling from the decision to try Khalid Sheikh Mohammed in federal criminal court, coming out strongly against the Specter bill would burnish the president's war-fighting credentials—and limit al Qaeda's ability to manipulate the courts.

It wouldn't hurt that in so doing, the president would also be showing himself willing to stand up to a key Democratic constituency. Let's hope he recognizes this bill for the gift it is.

Tuesday, December 1, 2009