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Earlier this year, I wrote a piece about FBI lawlessness in protecting, and essentially covering up murders and other crimes by, the Whitey Bulger mob in Boston in the 1960s to 1980s. Bizarrely, the leaders of the gang were simultaneously FBI informants, and state law prosecutions were thwarted to protect their status. Among the questions I raised was the fundamental one of the difficulty of distinguishing “rogue” governmental operations from widespread misbehavior that becomes institutionalized. Rogues may not be born every minute, but they abound in virtually every issue of the official reporters. Take the latest in the Boston FBI scandal. Another aspect of that shocking behavior was analyzed in a recent decision, Limone v. U.S., 497 F. Supp. 2d 143 (D. Mass. 2007) wherein Judge Nancy Gertner, after a bench trial, upheld allegations that “government agents suborned perjury, framed four innocent men and conspired to keep them in jail for three decades.” Perhaps this reprise of the original article would be redundant � except for the fact that the misconduct involved conviction of the innocent and the death sentence, and it extended to the highest levels of the FBI. The breadth and depth of the conspiracy may inform the current debate about widespread misconduct in Iraq and the “war against terror”, even though it, of course, preceded the current administration. In essence, Gertner found that the FBI suborned perjury by a well-known mobster, in the face of actual knowledge of falsity, indeed “prepped” him to withstand cross-examination and failed to disclose exculpatory evidence. The conviction and sentencing of four innocent men to death was not only undertaken and condoned by the FBI; the agency actively resisted all attempts to obtain new trials, intervened in parole and clemency proceedings, continued to protect the mobster from another murder charge and promoted the miscreant agents. In “terms that are more recently, familiar, these four men were ‘collateral damage.’ ” Gertner’s characterization was actually euphemistic � they were actual and intended damages. Well, even “collateral damage” remains “damage,” and redress was granted under the Federal Tort Clams Act. The FTCA is virtually the sole ground upon which the United States can be sued in tort; otherwise it is protected by sovereign immunity, even in the most egregious cases. Strangely enough, prior to 1974, intentional torts were exempted, and even now are actionable only against federal law enforcement officials. The FTCA presented significant hurdles since it expressly immunizes “discretionary function[s]” (but, it is black letter law that there is no discretion to violate the Constitution). The FTCA also requires a cognate state tort that would be actionable against private persons (under Massachusetts law), and Gertner held the United States liable for the FBI’s initiating the state law murder prosecution. In toto, the damages award was $101,750,000 for malicious prosecution, conspiracy, intentional infliction of emotional damages and negligent supervision. Deterring violations abroad While the FTCA and Bivens constitutional claims provide a measure of redress for internal federal law enforcement misconduct, the ability of American law to deter violations abroad by either the military or contractors is in doubt. The Alien Tort Claims Act (actually enacted in 1789) and the Torture Victims Protection Act of 1991 appear to be inapplicable to most actions of the U.S. government, although private contractors may remain liable. Indeed, some of the legal mess may be cleared up by a suit just filed under the ATCA against Blackwater (where do they get those names?) by survivors of a mass shooting in Iraq. The suit survived a motion to dismiss on Nov. 7. The U.S. Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) applied the FTCA to an ATCA claim brought against Drug Enforcement Agency officials for sanctioning a kidnapping in Mexico. The court held that various exceptions barred the action against the United States and that individual defendants were not liable since arbitrary arrest and a short detention did not violate customary international law. Other lower court decisions have held that the United Nations Convention against Torture was not a predicate for a damages action, and that the Fifth Amendment did not protect nonresident aliens from torture. Clearly, the principles enunciated in the Limone decision should guide the courts and should be extended by Congress to create liability for both military and private contractor misconduct including wanton shootings of innocent civilians abroad and other gross violations of international law. Whether the administration, which has zealously fought attempts to criminalize misconduct of both the United States and private contractors, will go along is in doubt. But, if we are to remain a nation of law, even in these dangerous times, Congress should take a stand. Isidore Silver is professor emeritus of constitutional law and history at the City University of New York.

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