“Knowledge”? What’s That? Never Seen That Word Before.
My favorite part of the Wall Street Journal‘s article on ATS litigation, discussed by Ken below, has to be this comment by the lawyer who defends such lawsuits:
In assessing liability, a key question can be whether companies assisted a foreign government that was known to violate human rights, says Joe Cyr, a New York lawyer who defends companies against alien tort claims. But the law is unclear, he adds, about what constitutes knowledge.
A statute that makes use of a particular mens rea and doesn’t define it? You mean, like the thousands of criminal statutes, both federal and state, that don’t define them either, relying on the fact that the basic mental states in criminal law — negligence, recklessness, knowledge, intent, etc. — have been subject to judicial interpretation, and application by juries, for centuries? How shocking! And what is with this “aiding and abetting” thing we’re always hearing about anyway? Is that some new social networking tool on Facebook that’s all the rage among the pre-teen set?
Call it “The Yoo Effect”: the idea that centuries-old principles of criminal law become radically indeterminate when applied to crimes and torts that conservatives approve of (like torture). I look forward to the outpouring of conservative sympathy for the next Muslim prosecuted for aiding and abetting a violation of the federal biological weapons statute, 18 USC 175:
Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both.
“Knowingly” assists? Who the heck knows what that means?