Lawsuits Over Attack On U.S. Consulate In Libya Face Long Odds

by
Reuters
The families of those killed or injured in an Islamist militant attack on a U.S. consulate in Libya this week have little recourse in American courts to win damages from the Libyan or the U.S. governments or from those behind the attack.

A Libyan military guard stands in front of one of the US Consulate's burnt out buildings during the visit of President Mohammed el-Megarif, not shown, Friday, Sept. 14, 2012, after the US ambassador to Libya and three other Americans were killed by a mob of protesters and gunmen. Some analysts say Al Qaeda was behind the attack, a worrying sign for Western oil companies counting on Libyan stability to continue operations.

The families of those killed or injured in an Islamist militant attack on a U.S. consulate in Libya this week have little recourse in American courts to win damages from the Libyan or the U.S. governments or from those behind the attack.

Legal experts say that the U.S. government has immunity from wrongful death claims, that winning a case against the Libyan government is a long shot and that a successful claim against the attackers would be almost impossible to collect.

The U.S. ambassador to Libya and three other Americans were killed on Tuesday during a protest against a film that angered many Muslims. Militants armed with guns, mortars and grenades staged a military-style assault on the Benghazi mission.

Protests have spread to Yemen, Malaysia, Bangladesh and Iraq, and clashes continued with Egyptian police near the U.S. embassy in Cairo on Friday.

Questions have been raised about the level of security at the consulate. But even if those security arrangements were found to have been negligent, legal experts say lawsuits over the attack would be difficult to bring against the United States.

"The U.S. government enjoys a number of different immunities that would protect it from a civil wrongful death claim," said Marc Miles of California law firm Callahan & Blaine.

Miles helped represent the families of four American security contractors killed in a 2004 ambush in Iraq. Their employer, the U.S. company formerly known as Blackwater Worldwide and now called Academi LLC, settled the wrongful death lawsuit in January.

NO WAIVER OF IMMUNITY

The United States can only be successfully sued in circumstances covered by a specific waiver of immunity issued by the U.S. Congress, said Susan Burke, an attorney in Washington who has brought cases against the United States.

"The situation in Libya does not fall into that waiver because the attack happened abroad," Burke said.

Nevertheless, the United States will likely provide compensation to the spouses and the children of those killed, experts said. The Federal Employees' Compensation Act calls for benefits payable "when an employee dies as a result of an injury sustained in the performance of duty."

Family members could choose to follow the path of other U.S. victims of militant attacks and file civil lawsuits in U.S. courts against foreign nations - in this case, Libya - to try to get compensation.

But the chances of success would be slim. Libya is no longer on the U.S. list of state sponsors of terrorism, so it is not automatically exempt from immunity under the Foreign Sovereign Immunities Act (FSIA) of 1976. Moreover, there have been no indications that Libyan officials were responsible for the attack.

In 2005 a U.S. judge in New York dismissed claims against Saudi Arabia over its alleged involvement in the Sept. 11, 2001, attacks in New York, Washington and Pennsylvania.

The judge said the court did not have jurisdiction, citing the FSIA. The plaintiffs in that case, a group that says it represents more than 6,600 relatives of those killed on Sept. 11, are trying to get the oil-rich nation back before the judge.

Some plaintiffs have tried to go after individuals or groups such as al Qaeda suspected of helping orchestrate attacks.

U.S. judges have granted billions of dollars worth of judgments against al Qaeda and others. But it has been almost impossible for plaintiffs to collect any money because the groups' funds are near impossible to trace, and they are hard to find and may have disbanded.