- The Washington Times - Monday, December 17, 2001

The phrase "out-of-court settlement" has a whole new meaning since September 11 when a security-conscious government began reducing access to the courts for terrorism suspects and victims alike.
The hundreds of immigration detainees get most of the attention, but they are the tip of an iceberg that chills conservative commentators, trial lawyers and civil liberties groups.
Detaining noncitizens believed to be a threat wins broad public support, with 77 percent of adults endorsing such detentions in a New York Times/CBS News poll last week.
But two-thirds of those polled have concerns about losing their own civil rights, and 60 percent want terrorism suspects tried in civilian courts rather than the military tribunals President Bush authorized Nov. 19.
The number of new lawsuits seeking money can be counted on one hand and Attorney General John Ashcroft calls the absence of habeas corpus lawsuits proof that detainees are not mistreated.
He has said the administration guards the rights of the accused while it protects American lives.
"I have yet to be informed of a single lawsuit filed against the government charging a violation of someone's civil rights as a result of this investigation," Mr. Ashcroft said three weeks ago. Last week, a Justice Department spokesman said that is still true.
Those not convinced include:
Victims seeking government financial help, who must give up the right to file lawsuits and cannot appeal any federal award they receive.
Civil liberties groups, which sued over immigration procedures for locking up aliens without revealing identities and allowing long detentions before court review in unannounced proceedings behind closed doors.
Objectors of all political stripes, who have labeled military tribunals "star chambers" where secrecy would hide unfair trial rules.
Families that sustained death or injury, and businesses wiped out by the attacks at the World Trade Center, the Pentagon or in Shanksville, Pa., angry that Congress decreed all civil lawsuits must be filed in New York federal court.
Those who may pass up federal compensation, deciding to sue United or American airlines, Boeing Co., Logan, Newark or Dulles Washington International airports; or the New York Port Authority, which owns the World Trade Center. Congress shielded that list against any judgment above insurance coverage. New York City's liability to lawsuits was capped at $350 million.
The first law, enacted in one day in the week after the attack to jump-start financial relief efforts to victims while protecting American and United airlines from bankruptcy, sheltered only the airlines from huge judgments. Analysts say airlines carry insurance of about $1.5 billion per aircraft in one incident.
Congress amended that law Nov. 19 to protect most other likely deep-pocket targets of trial lawyers, but not the assets of al Qaeda or the Afghan government.
A more subtle limitation on court access comes from the reluctance of criminal lawyers to defend terror suspects and from obvious concerns by trial lawyers that they will appear greedy if they sign up September 11 victims for contingency fee lawsuits.
"We criminal lawyers are people first and lawyers second," said Irwin H. Schwartz, of Seattle, president of the 10,000-member National Association of Criminal Defense Lawyers.
"Many lawyers have said, 'On the strength of my personal feelings I cannot represent someone involved in the attacks,'" Mr. Schwartz said.
One such person is Gregory B. English, of Alexandria, a retired Army lawyer who accepted court-appointment to represent Agus Budiman but quit the case in open court after testimony linked his Indonesian client to men flying both hijacked airliners that hit the World Trade Center.
Mr. English told the judge he had a conflict of interest and later stated his feelings more bluntly.
"Rather than represent this guy, I'd be in the firing squad," he said.
Federal court officials won't disclose how many lawyers have been appointed, but the most notable suspect, Zacarias Moussaoui, is not known to have had a lawyer during four months of questioning before Tuesday's indictment on capital charges.
Through their Association of Trial Lawyers of America, civil lawyers accepted a moratorium on filing lawsuits and many volunteered to work free for families applying for federal aid under still-unspecified rules.
Not everyone shares ATLA's enthusiasm for that option, including aircraft-accident lawyer Lee Kreindler, who said his law firm has more than 50 clients with September 11 losses.
"I'm very much afraid that the tort-reform people will use this as a springboard to advance administrative remedies," Mr. Kreindler told fellow lawyers at a seminar.

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