Terrorism Policy Research
Terrorism Liability Policy
Background
The civil justice implications of terrorism are complicated by a simple fact that in many ways compounds the tragedy: It is nearly impossible to hold the parties immediately responsible for terrorist attacks accountable in a civil court.
Even prior to September 11, 2001, policymakers attempted to address this issue. For instance, in 1997, the Foreign Sovereign Immunities Act was amended to allow state sponsors of terrorism to be sued for money damages. In practice, this has rarely been successful, since the frozen assets of state sponsors often have other claims against them.
Following September 11, Congress limited the liability of third parties who may have been found liable through their failure to prevent the attacks or whose actions may have contributed to the size of the losses. These third parties included the airlines, the Port Authority of New York, the City of New York, and the Dulles, Portland, and Boston airports. In the future, if terrorist attacks occur again, and particularly if they become more frequent, it is unclear whether Congress will attempt to identify potential defendants and limit their liability.
Concerned that liability fears will stifle innovation in the development of monitoring, screening, and other tools designed to prevent terrorism, the Homeland Security Act provides protection against liability to providers of certified anti-terrorism technology.
In addition, smallpox vaccine manufacturers' liability was also capped. In the case of reactions to the smallpox vaccine, a controversy resulted over who will compensate deaths among healthcare workers, and who will pay for the medical and lost-time costs.
The liability issues that have emerged so far are not as challenging as the ones that may emerge if chemical, biological, or radiological attacks occur in the future. One challenge will be to determine whether attack sites can be decontaminated or are uninhabitable, and who will pay for decontamination or replacement. The problems that will emerge parallel many of the most thorny mass torts and environmental legal issues:
- The footprint of the attacks is likely to be uncertain: How many city blocks were exposed and was the exposure sufficient to lead to the health effects claimed?
- The long-term health effects are unknown: Did cancers result from exposure to a radiological attack? What are the long-term health effects of exposure to various genetically altered biological agents?
- The duration of contamination is uncertain: When is it safe to return to buildings or sites that have been the site of a chemical, biological or radiological attack?
- Decontamination technology may be untested: Who will certify when the site of an attack is safe and a threat is no longer present? If decontaminated, will developers, property owners, or insurers be liable for error?
RAND Research Goals
Research by the RAND Center for Terrorism Risk Management Policy will explore the economic and social implications of various approaches to liability for terrorist attacks, and will monitor any litigation that emerges. The results will be made available to Congress and state legislatures for use in formulating liability policy; to businesses, property owners, insurance and reinsurance companies for use in anticipating and managing liability risk; and to judges and litigants.
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