WASHINGTON — President Trump’s former national security adviser John Bolton came out against the idea of U.S. citizens or governments taking China to court over its role in the global spread of coronavirus.
“It’s a very politically appealing position,” he said on Tuesday during a webinar hosted by Shurat HaDin (Israel Law Center), an Israeli civil rights organization established to defend the victims of terrorist attacks.
Shurat HaDin reportedly plans to file a class-action lawsuit against China on behalf of the victims of the coronavirus. Bolton, however, despite his reputation as a foreign policy hawk, warned against it. “I think it’s a very bad idea,” he said, again breaking with Trump, who had left open the possibility that the U.S. might seek damages from China in late April. (Bolton was ousted from his White House position last year over policy disagreements with Trump.)
The possibility of using the courts to hold China accountable for the spread of the coronavirus has gained traction in recent weeks as people and governments reel over the consequences of the disease’s destruction. In the United States, the virus has been responsible for more than 80,000 deaths and millions of jobs lost.
Multiple states, including California, Florida, Nevada, Pennsylvania and Missouri, have already filed suit in federal courts against China, seeking damages for victims who have died, become ill or lost jobs. They argue that victims were directly harmed by Beijing’s failure to share information and prevent the spread of the disease outside its borders, a charge Chinese state media has already denounced.
The Foreign Sovereign Immunities Act of 1976 prevents suing the governments of other countries except under very narrow circumstances, including injury, death or economic hardship caused directly by harmful action taken by a foreign state. Many critics see attempts to sue China for the coronavirus as not only time-consuming and destined to fail, but useful only as a political talking point in a heated election year.
Some lawmakers are working to devise a way to allow U.S. citizens to sue China for its role in downplaying or spreading the disease. Republican lawmakers, including Sen. Marsha Blackburn of Tennessee as well as Sen. Tom Cotton of Arkansas and Rep. Dan Crenshaw of Texas, have proposed bills that would create exceptions for Americans to sue China over damages related to the coronavirus. However, those efforts have thus far failed to gain traction on the Hill.
Bolton on Tuesday said he sympathized with families and victims, and argued that China needs to be held accountable. “Governments should put together something analogous to ‘The Black Book of Communism,’” he said. “I think we need a ‘Black Book of Coronavirus.’”
However, Bolton joined a growing chorus of international legal scholars who say suing China for the spread of the coronavirus is the wrong way to pursue justice for victims. Bolton during the Tuesday webcast argued “it would put the judicial system of the United States right in the middle of international controversy,” a role U.S. judges are not prepared for.
“It would just lead to lengthy, drawn-out proceedings that are not likely in a timely manner to bring justice to victims,” he added.
He warned that there would be further barriers, including securing the evidence and testimony necessary for civil lawsuits. Given China’s lack of transparency thus far, it’s unlikely they’ll provide evidence for court proceedings, Bolton argued. And even if a court case concludes with a finding against China, getting Beijing to pay up would be next to impossible, he said.
Bolton, who has previously opposed lawsuits against Saudi Arabia over the 9/11 attacks, also warned China might retaliate if the U.S. tries to waive its immunity. “The biggest objection,” said Bolton, “is the harm it would do to the United States.”
“This is a state-to-state matter,” he concluded.
While officials have typically opposed lawsuits against foreign governments, a number of lawyers and organizations, including Shurat HaDin, have found creative and sometimes controversial ways to challenge sovereign immunity, such as by launching multiple lawsuits aimed at banks and businesses associated with governments they hold responsible for harming their clients.
Speaking during the same webinar, John Bellinger III, a law partner at Arnold & Porter and a former State Department legal adviser, agreed with Bolton that suing China is not feasible and will not accomplish the ends victims hope for.
In an op-ed published in the Washington Post, Bellinger cited the Justice Against Sponsors of Terrorism Act passed in 2016, which allows families of victims of the 9/11 attacks to sue Saudi Arabia. He noted how that law, which some lawmakers feared could have unintended consequences, is similar in some ways to proposed legislation that would give victims of the coronavirus pandemic an avenue to sue China for damages.
“Whatever the political temptation to allow lawsuits against China, especially during an election year, Congress should resist doing so,” Bellinger wrote. “The United States respects the principle of sovereign immunity not as a favor to other countries but because we expect other countries to respect and protect the immunity of the United States and its officials in their countries.”
Not everyone agrees, and judges will need to decide how to handle the growing number of cases already pouring into federal courts.
Gordon G. Chang, a Chinese-American columnist and author of “The Coming Collapse of China,” sided with lawmakers who hope to find ways to allow Americans to hold Chinese officials legally accountable. During the Shurat HaDin webinar, he argued that the Chinese Communist Party, because it is technically not the state, is not immune from prosecution.
He suggested the U.S. act with other countries in order to build a coalition and protect against retaliation from Chinese officials.
“This would not be an issue of the U.S. versus China, this would be an issue of China versus the world,” Chang said. “One way or another, China has got to pay.”
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