The ADE651 Bomb Detector Fraud and the Potential for an Alien Tort Statute Claim

This article in the New York Times,* on the worthless bomb-detective divining rods currently being used by Iraqi forces to deter terrorists, might provide the basis for an extremely interesting lawsuit under the alien tort statute. Assuming you could get personal jurisdiction, and ignoring the fact that practically speaking there are much better alternatives out there, could an alien suffering some kind of legal injury bring suit in the U.S. against the manufacturer of the device?

The bomb-sniffing rod at issue in the NYT article is the “ADE651® device,” produced by ATSC, Ltd., a UK company. The device is essentially a divining rod or ouija board; it has no external power source, no apparent means of explosives detection, and is only operable by those who have been “carefully trained” in its use. Oh, and Iraq has apparently spent $85 million on them.

The Lebanon distributor of the ADE651, Prosec, provides this handy picture of the device, along with the accompanying description:

“The range of detection is around 50 meters with obstacles and up to 600 meters in outdoor areas, the unit can also detect explosives submerged in water or buried underground. Detection from a hovering helicopter is also possible.”

The Prosec spokesperson then added, “It can also receive free cable, make perfectly popped popcorn every time, and roast a 9 lb. turkey in under an hour.”ade651 snakeoil

The principle behind ADE651’s ability to detect explosives has been variously described as “electrochemical (Thermo-Redox) detection,” “nuclear quadrupole resonance,” “electrostatic ion attraction,” or, as Jim McCormick, the owner of ATSC, explained it, “The principal is Electrostatics. It is more akin to Coulomb’s Law than Gauss’.”

Now, where would the Alien Tort Statute (ATS) claim lie in all of this? Clearly in a purely US-domestic matter this would be grounds for a pretty heavy fraud action, but the ATS is not an open ended jurisdictional grant. It provides only that “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

So in the hypothetical of a case brought by an Iraqi against ATSC, Ltd., the “by an alien” requirement is clearly met, as is the “for a tort only” requirement, as fraud can be the basis of a tort claim. However, given current ATS jurisprudence, fraud is not the kind of tort that is “committed in violation of the law of nations or a treaty of the United States.”

So rather than the ADE651, a better test case would be provided by the GT-200, which is by produced by Global Technical, a UK corporation. (Global Technical, by the way, alleges on its website to be a “United Nations Registered Supplier.” Anyone out there know what the hell this means? I’m assuming it’s fraudulently made up by Global Technical, in which case the UN needs to do something about it now.) The GT-200 is a dowsing rod device much like the ADE651. It needs no external power source and runs off of the “electro-static electricity” created by the human holding it.

The FAQ of the product contains the following gems:

Q: Can GT200 detect all types of narcotics and explosives?
A: Yes.

Q: Is there anything that can stop or block the GT200 from detecting substances?
A: To date, we have not found anything that will totally block or stop the substance signal being detected.

Q: What is the maximum distance that the GT200 can detect?
A: The detection distance for general search is up to 700 meters. It can detect substances in water (fresh or salt) up to a depth of 850 meter. In the case of buried substance it can detect up to 60 meter deep. For aerial reconnaissance, the distance extends to 4 kilometers.

While fraud is clearly at work with the GT-200, there’s something else important about it as well: the deaths of three policeman in Thailand have been attributed to the ‘malfunction’ of a GT-200:

As for an explosive-detection device, called the GT-200, that malfunctioned in detecting bombs and preventing an attack, the police chief said he would discuss with technicians, but needed more information before commenting.

A fourth death caused by the device occurred last month, also in Thailand:

Recently, the GT200 showed false negative results on 6 October 2009 at a bombing near Merlin Hotel, Sungai-Kolok district, Narathiwat province which caused one death and several injuries, as well as on 19 October 2009 during a bombing at the Pimonchai market, Muang district, Yala. During these two incidents, officials were called beforehand to check a car and motorcycle under suspicion. The device was not able to detect any dangerous substances. The bombs exploded a few minutes after the examinations.

Unlike the hypothetical case alleging mere commercial fraud, if the GT-200 can be attributed to human deaths, whether in the course of war or in police actions, the jurisdictional basis for a claim under the alien tort statute just got a whole lot stronger.

Next up: Magic Bomb Wands, Corporate Liability, and the Alien Tort Statute.

Update: Jim McCormick, chief director of the company that makes the ADE651, has finally been arrested.

-Susan

*This is completely unrelated to anything above, but while writing this post I was amused to find that the author of the NYT piece apparently did some of his own research on web message boards, as you can see from his post here, asking one of the forum contributors (“DubiousDick”) to contact him. Isn’t contacting random internet commenters for a story something blogs do, rather than major national newspapers?

And thus, through the Richmond Hellmouth, 1,000 new lawyers were unleashed upon the world.

Your esteemed bloggers here at LL2 took this morning off from their rigorous blogging schedule to drive to Richmond, so we could be admitted to the Virginia Bar. Today has now been the third time for someone to inform us that, “Today you are finally a lawyer!”, the previous two occasions being when we graduated from law school and when we passed the bar. At any rate, I am pretty sure that by whatever measure you’re going by, there is now no question that we are officially 100% actual real live little baby lawyers.*

-Michael & Susan

*Unless, of course, someone asks if we are lawyers in DC, in which case we are required by law to inform them that we are not in fact lawyers.

The Oxymoronic Concept of ‘NATO Intelligence’

In 2008, a FOIA request resulted in the release of a (redacted) version of a 1984 CIA article: NATO Intelligence: A Contradiction in Terms.

The report is pretty scathing:

“Since its inception, NATO has essentially opted out of the intelligence business. The command structure is almost totally innocent of any inherent capability for detecting or analyzing what is really going on. An almost pathetic aspect of the situation is the occasional effort by well meaning national officers to find ways to feed the very life blood of a viable defense system (intelligence) into a virtual corpse.”

The report places most the blame for the failure of NATO intelligence on the compartmentalization of national intelligence services — that is, an institutional structure that relies on each state serving its own intelligence needs rather than relying on coordinated intelligence gathering. “[W]hile it may have made sense in the late 1940s to designate intelligence as a national responsibility because of broad similarities in intelligence gathering capabilities among the nations, the matter is much less clear today. The United States, with its global systems, backed by an intelligence budget exceeding the total defense expenditures of most of the other members, has developed systems for supporting its tactical forces that the others can never hope to match. And still they must all be prepared to fight a common enemy on a common battlefield.”

The report describes the failure in NATO intelligence as a failure to apply the concept of relative advantage to the realm of multinational intelligence gathering. With the U.S. supplying 90% of all of NATO’s intelligence, with the rest of NATO combined making up the remaining 10%, “NATO’s practice of treating intelligence as a national responsibility—as though each of the members could serve the needs of its own forces in war as well as in peace” appears to be a gross misuse of resources. By operating under compartmentalized national intelligence services, the coalition forces are simply adding their individual efforts together, rather than allowing states to benefit from strengths of the others so as to improve the quality of each nation’s military capabilities. Such an approach to NATO lies upon “the very dubious proposition that the combat effectiveness of Dutch forces, for example, served by Dutch intelligence, is the best we can expect from the Netherlands.”

This failure to coordinate intelligence strategies is, of course, ultimately not just a problem for spooks, but a very real dilemma on the battlefield, when multinational forces are employed. By not sharing intelligence information with other national forces, we either maintain “rigid adherence to the integrity of national formations at the corps level, which could mean collapse of a front while units of a different nationality stand idly by,” or else put U.S. troops at unnecessary risk by depriving them of the of vital U.S. intelligence whenever a U.S. division serves subordinately to the command of another NATO nation’s military.

In the 25 years since the article was published, its primary arguments have not become outdated. Despite attempts to achieve greater cooperation between NATO members regarding intelligence resources, compartmentalization remains the default rule. NATO’s failure to coordinate intelligence services neutralizes what could be the alliance’s most significant contribution, particularly with today’s ‘war on terror.’ Asymmetrical warfare is also asymmetrical in the sense of the relative amounts of intelligence vs. brute force required. During the Cold War, large amounts of both multilateral intelligence and multilateral military force were necessary. Today, the amount of physical military force required to attack targets is, comparatively, exceedingly low — a single nation’s forces are more than capable of taking out a terrorist base. The capabilities of NATO’s combined military force are of less practical use, therefore, than NATO’s combined intelligence gathering capabilities could potentially be.

This asymmetry, however, is also why achieving an efficient division of labor in the intelligence field is close to impossible, even if in theory it would increase net military ability. It is because the power to shape world policy is not divided equally among the various roles to be carried out: “As the result of the ‘revolution in military affairs’, [PDF] the United States will find itself unable to interoperate with lesser forces, and NATO will find itself providing various forms of follow-on support, from medical services to military policing. In other words, the information and technology gap will relegate NATO to washing the dishes.” Because a single country has the ability to fulfill most or all of its force requirements (to the point where multilateral forces are carrying out a political strategy of avoiding unilateralism, rather than any military strategy), the gains to be had from sharing intelligence with other nations accrue overwhelmingly to the state that is using the intelligence to carry out military operations. The states specializing in “dish washing” will improve NATO’s ability to carry out its objectives, but forfeit much of their ability to decide what NATO’s objectives should be. This is not a trade-off most if any will agree to:

“Some might argue that in military terms such a transatlantic division of labour could make sense. European states have been proud of their specialist skill-sets right across the field of low-intensity conflict, counterterrorism, peacekeeping and humanitarian aid. All these activities are accompanied by specialist types of intelligence support and intelligence cooperation. Human intelligence, as much as technical systems, is at a premium in these situations. When the British troops arrived in Kosovo, Richard Holbrooke exhorted them to do what they had done successfully in Northern Ireland. More recently, in Afghanistan, the United States has done most of the invading while the Europeans have been bequeathed the task of nation-building. Yet while this arrangement may be pragmatic, such a stark separation of roles will quickly corrode transatlantic solidarity.

Specialization of services when it comes to joint military operations does not, unfortunately, promise the same benefits for national security as trade specialization does for the global economy. It is much easier (though not easy!) for states to agree to a common goal of ‘increasing net economic gain for everyone by specializing in particular goods’ than it is for states to agree to ‘increase net intelligence capabilities of NATO forces by letting the U.S. control the show and having everyone else provide background support.’ So although NATO intelligence is a contradiction in terms, greater integration of NATO members’ intelligence resources in unlikely to be achieved.

-Susan