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Last spring, Army lawyer Col. Allen Irish paid a visit to the family of a 19-year-old Afghan who was struck and killed by a military vehicle near Kabul. The man’s 16-year-old widow was not permitted by her family to interact with the male officer, so Irish was forced to bring along a female colleague as a go-between. The question of how much to pay the family to settle the wrongful-death claim was complex. Under the Foreign Claims Act, the U.S. military may compensate foreign nationals and businesses for losses unrelated to combat by applying local law and custom. But in Afghanistan, as in many war-torn nations where the United States deploys troops, there was no published legal code. Irish — a reserve judge advocate who works full time as a lawyer for the National Paint & Coatings Association in Washington, D.C. — ended up contacting expatriate Afghan lawyers who had returned to Afghanistan after the Taliban’s fall. Ultimately, Irish applied principles similar to U.S. law considering the man’s age, future earnings and dependents, and the family was paid $15,000 in cash — the largest claim to date stemming from the U.S. military presence in Afghanistan. Military deployments — even peacekeeping operations, disaster relief missions and training exercises — inevitably result in civilian property damage, injury and death. It falls to judge advocates to resolve the resulting claims in an effort to promote good relations with the local populace. As the U.S. mission in Iraq shifts from overthrowing Saddam Hussein’s regime to restoring security and rebuilding infrastructure, a robust claims program will likely become an important tool for winning the trust of Iraqi civilians. Though an official system for processing claims is not yet underway, officials are already receiving reports of property damage and vehicle accidents. Common claims are likely to include traffic accidents, the loss of livestock and property damage related to the movement of tanks and helicopters. Most losses suffered by Iraqi civilians over the past month — no matter how devastating — will fall under a broad exclusion for combat-related activities. “If a bomb drops on a house by mistake, but it is part of military operations, we don’t pay that claim,” says Irish, who is on active duty in Kuwait. Over the past two decades, military lawyers have learned that even routine claims can create unusual challenges — from determining the appropriate value of lost camels to pricing a human life. The two issues intersected for lawyers adjudicating wrongful-death claims arising from U.S. operations in Somalia. Army lawyers learned that, according to local custom, a Somali man’s life was valued at 100 camels and a woman’s life at 50 camels. In more stable economic times, a camel had cost roughly $100 on the open market. Taking into account that the average annual per capita income in Somalia at the time was just $500, the Defense Department established an upper limit of $10,000 for death claims. Individual claims were resolved through negotiations with village elders. “Your first issue is to determine whether claims are related to combat or not. If not related to combat, you must determine whether it’s payable under local law,” says Francis Adams, chief of foreign claims for the U.S. Air Force. “It is a legal challenge to get out of the mode of thinking like an attorney in the United States and to think like an attorney in that country.” LITTLE BIT GOES A LONG WAY According to Defense Department regulations, the Air Force is officially responsible for settling claims in most Middle East nations, including both Afghanistan and Iraq. As a practical matter, however, the appointment of a judge advocate to review claims often comes down to who has boots on the ground. Army lawyer Irish paid the first claim in Afghanistan in March 2002: $50 to replace a bicycle damaged in a vehicle accident. “Claims are usually not large amounts of money, but to the people involved they are very important,” says Irish “Fifty dollars is more than a judge makes in Afghanistan in a month.” Under Air Force regulations, individual lawyers can be authorized to award claims of up to $25,000. Additional approvals are necessary for payments exceeding $25,000, and the secretary of the Air Force must approve any settlement above $100,000. Smaller payments come out of Pentagon budgets, while any amount over $100,000 is paid directly by the U.S. Treasury. In NATO states and many allied nations, claims are governed by international agreements rather than the Foreign Claims Act. In order to supercede the Foreign Claims Act, such agreements must stipulate a process for handling claims and assign cost sharing between the host nation and the United States. The range of incidents that can be compensated under the Foreign Claims Act is broad — covering claims resulting from military activity and those related to actions by service members or civilian staff, whether or not they are connected to official duties. For example, one of the largest Foreign Claims Act settlements ever — valued at over $1 million — stemmed from an accident on a golf course in the Marshall Islands when a member of the U.S. Navy hit a golf ball that struck an Australian woman on the head and caused serious brain injury. More-frequent claims include drunk driving or assault by U.S. service members or civilian employees. “Unfortunately, we have some soldiers going out and committing crimes,” says Doug Dribben, a senior attorney in the Army’s foreign torts branch. “The Foreign Claims Act allows us to settle those claims.” The statute of limitations under the law is two years. Settlements are not reviewable, and claimants must waive their right to bring a claim in U.S. or local courts. According to Dribben, foreign nationals and business entities have little recourse outside the Foreign Claims Act to seek payment from U.S. forces. “There may be an option of bringing an action against an individual service member in local court,” Dribben says, “but there will be very little for the person to recover directly from the soldier.” The owner of a Sudanese plant bombed by the United States in 1998 is testing that theory with a suit seeking $50 million in U.S. District Court for the District of Columbia under the Federal Tort Claims Act, which provides a limited waiver of the federal government’s sovereign immunity for circumstances where the United States, if a private person, would be liable. To get around the law’s exception for tort claims arising in a foreign country, the suit alleges that the incident leading to the destruction of the plant was the decision to bomb made in Washington, not the bombing itself. The suit is not without precedent. In Orlikow v. United States, the District Court found in 1988 that CIA psychological experimentation in Canada did not arise in a foreign country since it was supervised and funded in Washington, D.C. The case settled for $750,000 after the ruling. Meanwhile, a separate suit filed by the Sudanese plant in the U.S. Court of Federal Claims under a different theory was dismissed March 14 on the grounds that the Fifth Amendment’s just compensation clause does not apply to military operations. ON THE GROUND IN IRAQ Once the U.S. presence in Baghdad has become more firmly established, the Air Force will appoint lawyers to pay routine claims, says Maj. Scott Ecton, chief of foreign claims for the Air Force component of U.S. Central Command. The value of claims in Iraq is likely to exceed those in Afghanistan because of Iraq’s higher standard of living, Ecton adds. The exemption for combat-related claims may create a burden for U.S. forces attempting to win over the local population. “If we make mistakes, people expect us to pay. They don’t necessarily see a line between why we might pay in one situation and not another,” says Maj. Andrew Glass, a claims law instructor at the Army JAG School. The line can be fuzzy for lawyers in the field as well, particularly in peacekeeping missions where the combat exclusion still applies to skirmishes with hostile forces. “There is no set date where we start paying claims,” says Adams, the chief of foreign claims for the Air Force. “Each claim is looked at on a case-by-case basis.” “Judge Advocates in Combat,” a book by Army Col. Frederic Borch chronicling the role of lawyers in military operations, recounts the following episode from Somalia: “A squad of U.S. soldiers in four [Humvees] came upon a truck while on a night tactical move. Unbeknownst to the Americans, the truck had just been hijacked, and the truck’s owner and his family were in the truck. One of the hijackers panicked and fired at the squad. The soldiers returned fire, killing the hijackers and the owner’s family.” Because the killing was combat-related, lawyers could not pay a settlement under the Foreign Claims Act, though they were able to make a small sympathy payment, known as solatia, to the truck’s owner, who survived. Even when the legal issues are clear-cut, myriad practical difficulties are bound to arise as lawyers grapple with foreign laws, foreign currency and foreign language. Often, the work entailed in investigating claims — such as determining the value of livestock — is a far cry from the issues military lawyers handle at their home installations. Livestock losses occur frequently in military operations, and judge advocates soon learn that animals have a sophisticated pricing structure. “A lot of factors go into determining the value of livestock, such as how healthy the animal is and whether it is of child-bearing age,” says Maj. Cody Weston, a marine lawyer detailed to the Army Center of Law and Military Operations. Irish, who was in Afghanistan six months ago, recalls driving 30 miles outside Kabul to visit a farmer who claimed a low-flying helicopter had spooked his ox. According to the farmer, the ox bolted, broke its leg, and had to be put down. Irish and an Army veterinarian examined a similar animal to determine the appropriate payment. In addition, language and cultural barriers frequently hamper claims investigations. According to an account in Army Lawyer, by Jeffrey Harris, civilians filing claims in Grenada would often describe the location of an incident as “one mile north as the crow flies.” Significant difficulties also arise in many nations where civilians cannot verify property or land ownership with legal documents. Accepting a claimant’s word or even witness statements opens the door to false claims. Lawyers sometimes feel caught between conducting vigorous investigations and upholding the stated purpose of the process: “to promote and maintain friendly relations.” “In an operation like Iraq, where we are trying to be viewed not as conqueror, but as liberators, settling claims can be extremely important,” says Weston, the Marine lawyer. Weston adds, “There are countervailing concerns, too. We don’t want to be seen as handing out cash.”

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