Is the American Litigation System the Terrorists’ Best Friend?

By John Giduck

You wake in the middle of the night among sweat-soaked sheets. Your dreams fade to a blurry kaleidoscope of torn bodies, innocent faces and blood. It’s been two years and still every night you relive the horror of what you experienced. Sure, everyone, including your department heads and school officials, said repeatedly that it could never happen here—not in America. They said they weren’t worried. Still, as a SWAT team leader, you recognized that your job was to be ready for that which no one else would consider.

When it happened, you’d done everything in your power to save the lives of the hostages. It was brutal, horrific, unlike anything American law enforcement had faced before. Certainly, it was unlike anything they had prepared for. When it was over all the terrorists were dead. Many of the hostages were dead and some of you were dead.

As though that wasn’t enough, before the bodies were identified, the legal wrangling had begun. First, the news media investigations fueled both state and federal legislative commissions to investigate “what had gone wrong.” A grand jury was convened and all of you—at least those of your team that had survived, with many dying while hesitating at critical moments—were subpoenaed to testify. There was no promise that indictments against you were impossible.

Finally, the lawsuits came. The families of every single one of the dead hostages sued; you were named individually along with your department on each one of them. If that wasn’t enough, about half the hostages who lived filed suit as well. The dead were condemning you for the battle and the living were crucifying you for making them endure the trauma of captivity and not assaulting sooner.

You look at the alarm clock, knowing that in a few hours you’ll have to get up to face the day. But this will not be a day like the others; it will be the first day of trial in the first case to get that far. There is no end in sight, and it seems unlikely you can ever work again, or will even end up with your own home when it’s finally over. Your wife left months ago, unable to take the stress. You’ve lived with guilt every day, and then sat through day after day of depositions pretending there was no guilt, telling yourself—and them—that you did nothing wrong. You wonder what other elite assault teams in the world did to deal with all this. “But then, they don’t have our wonderful American legal system to worry about,” you muse to yourself. “If the terrorists had only thought of it before, had realized what an asset it was to them, they would have been attacking America all along, and not other nations.”

Sadly, the two greatest factors influencing policy making in police departments is: (1) fear of litigation; and (2) fear of adverse news media coverage. In our constitutional system there is little that can be done about the perspectives the news media chooses to take. However, we cannot allow hostages to die and police officers to be gunned down due to fear of lawsuits and restrictive administrative policies. And our litigation system has no significant limitations on its use or abuse. Having spent much of my adult life working in foreign countries—and having been a lawyer for more than the past 20 years—I’ve had a unique opportunity to put the American legal system into broad perspective. As a culture, we have reached a point where we suffer a ridiculous and naïve expectation of a perfect life; and when that perfect life does not happen, someone else must be at fault and that person should give us money—usually, enormous sums of money. We are the only nation in which someone can sue for—and receive—millions of dollars because someone else gave him bad feelings. Torts like intentional infliction of emotional distress, negligent infliction of emotional distress (the poor defendant didn’t even have to mean to hurt his feelings), mental anguish, pain and suffering, together with punitive damage awards, make police officers hesitate before acting decisively.

Juxtaposing this cultural Achilles’ heel against the reality of a terrorist-mass hostage siege in America, the problem becomes clear. When the terrorists come to our shores and take hostages it is going to be our police and sheriff’s departments who will become our Special Forces. They will be asked to throw themselves into a difficult tactical situation. SWAT teams will be expected to function with the same elite military skill as famous counter-terror units like the British SAS and our own Delta and SEAL Team Six. But when those military units deploy to mass hostage situations—when they are forced to storm a building and kill the evil before them—who among them worries about administrative rules? Who, on any of those teams—American, British, Israeli or Russian—hesitates over concerns of negative media coverage, or fear of litigation? Who pauses at critical moments, as thoughts of investigating committees, lawsuits, grand juries and even possible criminal charges flash through his head? None of them. If they did, they would die, and many of the hostages would be killed. In such circumstances the assault teams must be true dogs of war, and they must be turned loose to kill as many of the enemy as possible. Every one of those elite units understands completely that it is a dangerous game, and that people are going to die. Among them, in almost every instance, will be some of the innocent.

Russia has suffered its share of Islamist terrorist-hostage sieges and there is much we can learn from those experiences. During the Nord-Ost Theater siege in Moscow between October 23 and 26, 2002, 42 Islamist terrorists took more than 800 theatergoers hostage. Twenty-five female suicide bombers were spread throughout the theater, each with a 3 to 5 kilogram (6.6 to 11 lbs.) suicide belt bomb, and a Makarov handgun. Another 20 bombs were spread around the theater, forming a perimeter encompassing the hapless hostages. Additionally, two major devices—one in the middle of the main floor and the other in the balcony, designed to collapse the ceiling and walls—sat menacingly amidst the innocent. The men had set up fortified machine gun positions, IEDs and trip wires along the two main corridors leading into the building.

With a crucial deadline looming the morning of the 26th, Russian Special Forces accessed the ventilation system under the building and infused the theater with an as-yet unknown powerful nerve gas.* The two counter-terror units tasked with primary responsibility for assaulting the building—Alpha and Vympel—injected the gas at 5:00 am, and waited 30 minutes before storming the theater. During that time, not all of those inside were overcome by the gas. Hostages stumbled out exits, coughing and retching, but very much conscious. The counter-terror teams hit the doors in a simultaneous, multi-pronged attack at 5:30 am. In a vicious 20-minute battle, they eliminated every one of the male terrorists in the hallways.

When they entered the theater itself they saw hundreds asleep, but many others coughing, crawling or stumbling about. All of the female terrorists were lying back in their seats with their eyes closed, each with a hand on the detonator to her belt bomb, and the various other devices throughout the facility. Being aware of the standard al Qaeda training the terrorists receive—to await the arrival of responders and rescue teams before detonating all the bombs to increase the body count of the “enemy”—the Russian commandos reacted the only way they could: each female terrorist received a bullet to the head as fast as possible. For their success in this rescue, the Russian Special Forces received the wrath of the western news media. Headlines the world over announced things like: Russian Commandos Execute Sleeping Female Freedom Fighters.

Twenty-two months later this siege would be duplicated in the small town of Beslan. Only this time the terrorists would have learned from their errors at Nord-Ost. With approximately 1,200 hostages—mostly women and children—held inside a school for two and one-half days, a bloody 10-hour battle would begin by accident. Once pitched, the Russian commandos died in unprecedented numbers, fighting to save the lives of the innocent. Despite these efforts, many hostages died, and most likely a number were killed by the commandos themselves. As the assault teams were fighting down the narrow confines of an 80-yard long hallway, one young Vympel officer saw a terrorist in a classroom doorway, holding a gun to the head of a small child held up as a human shield. At the same time this young soldier saw that behind the terrorist (and his fear-stricken protection), inside the classroom, was another terrorist about to set off a bomb among a group of children. The young officer could not hesitate. He had to shoot through the little boy to take out the terrorist holding him, so he could eliminate the terrorist with the bomb, all in one second. At other times throughout the day-long battle, terrorists changed clothes with hostages to avoid being killed by the assault teams. It is likely that a number of these innocent adults were killed by those teams as they swept quickly into each room, shooting anyone and everyone that looked like a terrorist.

When our law enforcement officers are called into these same situations, what freedom will they have to operate in a way that will guarantee success and save as many innocent lives as possible? As the Archangel Group—the organization I work for training police, US Special Forces and government agencies—goes around the country, we are confronted by law enforcement officers who say that they would never be allowed to shoot seemingly sleeping terrorists in the head, would never be able to shoot through a child to eliminate a bad guy (and would never even be permitted to train to deal with that reality). They would all hesitate before shooting anyone who looked like a terrorist at a glance. It takes little thought to draw horrific conclusions of what the consequences would have been for the Russian soldiers had they not been able to act quickly and effectively.

Police officers across the country insist they would hesitate, in large part due to their certainty that their own policies would prevent them from decisively dealing with terrorists in such life-and-death battles. They are convinced that they would never have the support and backing of their own administrations. They would attempt to arrest the female terrorists with their eyes closed, and would tell the terrorist in the doorway to “freeze” and put his gun down. They would suffer the consequences of holding fire as they entered classrooms, giving terrorists ample time to detonate explosives, killing both child hostages and assault team members.

This will be the reality of law enforcement operations in responding to the terrorist attacks of America’s future. And while we have hampered the men and women of our police agencies in terms of necessary equipment to undertake such operations, those same warriors are completely handicapped in the freedom to do the things that will be necessary to defeat a dedicated enemy. As I have written before, and constantly preach throughout the United States, when a true international terrorist siege comes to our homeland, our police will no longer be peace officers administering the law to a civilian population, but soldiers in a war.
There is no knowledgeable terrorism expert in the world who does not believe that such assaults in America in the near future are likely. When they come, there will be only one outcome: there will be a battle and people will die. There will be no negotiated resolution. The terrorists will not permit one and they will not allow themselves to be tried and imprisoned in the American criminal system. They will be there to die and they will do so, taking as many others with them as possible. When this happens, it will be our police who will be asked to throw themselves into that cauldron. They cannot hesitate to do what will be necessary. The assault teams will have to be granted the freedom to shoot quickly and a lot in order to launch a successful rescue operation. No one will be afforded the luxury of hesitating or denying the use of any tactic, because of fears over legal ramifications. Accountability of every round fired will quickly become a pathetic and unrealistic luxury from another time.

For this reason, it is essential for our law enforcement, government agencies and any others called on to respond to a terrorist attack or siege, in an official capacity, to receive a federal grant of absolute immunity from criminal, civil and administrative prosecution and sanction. Many will decry the removal of what they view as necessary restraints on police abuse of power. In no single instance will these be the people who have ever experienced a terrorist-hostage siege, a horror in which the terrorists have removed all restraints on abuse and degradation from themselves. These people will never have seen a living human being get his head slowly cut off; young girls brutally raped, or hostages bound to bombs waiting to go off.

Every single day our men and women in blue don uniforms and loaded firearms, with the capacity to use them. However, the limitations on that use are the limitations of an ordered society and the predictability of American criminals and everyday citizens. These are important and necessary restraints on police power in any free, democratic nation. No one is looking to take these away.
However, when terrorists come to America with blood in their eyes and no limits on what they will do, our warriors will have to be afforded the same discretion to have a chance of defeating them. Lives will be at stake. The immunity Archangel and I propose would not remove any of the important legal duties or restraints on police in their everyday work. Only once an appropriate federal authority declared an action by an enemy combatant to be an international terrorist attack, would the immunity passed by the U.S. Congress and signed into law by the President vest. In much the same way Good Samaritan laws have existed throughout the U.S. for decades—granting immunity to any passerby who renders assistance in a car accident—so would this federal law provide legal protection to anyone responding to a terrorist attack on America. One model for this legislation could be drafted as follows:

It is only through such protection being afforded our frontline warriors, that they will have the ability to act without hesitation, to engage the enemy quickly and ruthlessly, to do all the things that will be necessary to defeat a determined and highly trained enemy, saving the greatest number of innocent hostages at the same time. Each and every police officer in America must contact his federal and state representatives and senators now. Though legislation of this type must be federally granted to be effective, state level groundswells can be of great benefit. Use your expertise to outline the realities of future terror attacks on American soil and against U.S. citizens. Implore lawmakers to consider sponsoring such legislation, to do something proactively rather than waiting for the horror to come to us before acting.

Legislation like this does not happen easily or quickly. In fact, it may not happen until after the first terrorist siege on U.S. soil; after there has been a large body count of innocent children and adults. Still, the groundwork must be laid now if we are ever to give our warriors the freedom to do the worst job they will ever be asked to do. It is a job that will be difficult enough for them to live with in the months and years afterward. For, if they manage to live through the terrorists’ nightmare, they should not have to live through the destruction of their personal and financial lives due to our legal system.

* To this day, no one in the United States knows exactly what this nerve agent was. No matter what inside information someone may have told you, our government and its intelligence agencies and classified labs do not know. It was not, contrary to opinion, fentanyl, Novochuk, M99, or any of the other variety of substances that have been speculated.

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