By Mike Pompeo and David B. Rivkin Jr.
Aug. 26, 2021, in the Wall Street Journal
Will we ever know where Covid-19 came from? Not if the last word comes from the U.S. intelligence community, which reported to the White House this week that China’s fault is plausible but unprovable. Beijing has refused to cooperate with inquiries, which it has characterized as “origin tracing terrorism.” The Chinese Foreign Ministry even denounced the equivocal intelligence report: “If they want to baselessly accuse China, so they better be prepared to accept the counterattack from China.”
For the rest of the world, getting to the bottom of the question is essential to assigning blame and preventing pandemics. Fortunately, we have an institution dedicated to getting to the bottom of thorny factual disputes: the U.S. judicial system. Our judiciary is respected globally for its impartiality and scrupulous adherence to due process. Civil discovery gives litigants the tools to compel production of evidence, backed by the threat of sanctions or even default judgment, so Beijing would be unable to stonewall. With so many losses caused by the pandemic, U.S. litigants have a powerful incentive to bring cases, prosecute them aggressively, and test liability through adversarial presentation. Several such cases have already been filed.
But those suits and others like them face a high hurdle: the Foreign Sovereign Immunities Act. The FSIA is the reason at least eight lawsuits were dismissed or withdrawn on grounds that foreign states are generally shielded from litigation in U.S. courts. Yet that immunity isn’t a constitutional mandate, only a matter of congressional discretion. Congress can legislate exceptions, and has done so.
Lawmakers should enact a new FSIA exception denying sovereign immunity to nations that fail to inform, or deliberately misinform, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December 2019 to comply with the 24-hour notification requirement of the 2005 International Health Regulations, which China joined, should be a sufficient trigger. This would permit lawsuits to proceed so China’s culpability for the Covid-19 outbreak can be openly adjudicated.
Congress should also withdraw immunity from international organizations that aided and abetted China’s efforts to play down the virus’s transmission and health risks. Western intelligence services have suggested that Beijing instructed the World Health Organization early in the pandemic on what it should say about Covid-19. Plaintiffs could use discovery to identify other governmental and private entities that collaborated with Beijing and hold them accountable. This litigation would have an added benefit of unmasking much of the pro-China infrastructure within international organizations and Western companies, think tanks and other institutions.
To ensure that China can’t delay proceedings, the FSIA amendment should also either create a new federal tort action or give federal courts jurisdiction over Covid-related claims under state law.
Some may object that these measures could interfere with U.S. diplomacy. But Congress can address that concern. The Justice Against Sponsors of Terrorism Act of 2016—which withdrew sovereign immunity from nations that provided material support to terrorist attacks on American soil—authorized the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harm. It makes sense to follow that model here. That would provide the Biden administration with the impetus to declassify and make available to Covid-19 litigants intelligence relating to the virus’s origin. Here, too, there is precedent, stemming from civil cases over the Iran-contra affair and the 9/11 terrorist attacks.
Defendants in U.S. legal proceedings are ordinarily entitled to bring counterclaims and spread liability to other potential defendants. Beijing has accused the U.S. military of creating the Covid-19 virus at the Army’s Fort Detrick, Md., lab and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. To ensure that Beijing is accorded every opportunity to defend itself, including bringing counterclaims against the U.S., the Biden administration should waive governmental immunity, a step it can take unilaterally without statutory changes. Let Beijing test its implausible theory in court.
China wouldn’t be able to ignore lawsuits in American courts, given its close commercial ties with the U.S. If it refused to participate, courts would enter enforceable default judgments. China would be hard-pressed to avoid complying with any court-ordered damages and injunctions. Successful plaintiffs could pursue collection actions against Chinese government-owned commercial property around the world. Corporations are not normally liable for their owners’ debts, but there is an exception when the owner is involved on a day-to-day basis in running the company. Given the Chinese Communist Party’s pervasive control over formally private Chinese companies, this shouldn’t be difficult to prove.
It should be possible to secure broad bipartisan support for these measures. Republicans and Democrats have expressed a keen desire to hold Beijing accountable, and the Biden administration has made a priority of defending and strengthening the rules-based international order. The president has repeatedly said he wants to make sure China plays by the rules.
Chinese military publications have run articles expressing interest in developing biological weapons. China understands that bioweapons are particularly effective against open societies, where stringent isolation and quarantine measures spur resistance, and could be used to incapacitate aircraft carriers and military bases, which are crucial to the U.S. ability to project power in the Indo-Pacific. Pandemics aside, upholding international norms is essential to deterring China from other malevolent acts, including against Taiwan.
Permitting Covid-19 suits would have additional strategic benefits. In its propaganda, Beijing has sought to capitalize on its supposedly superior handling of Covid-19, claiming it demonstrates the superiority of its totalitarian political system over open, democratic society. Legal discovery could unearth information puncturing these claims.
Holding Beijing accountable would also do much to dispel its assertions that the U.S. is a declining power. While Beijing still respects U.S. military power, it routinely talks down U.S. political will and economic strength. It would face a formidable foe in an army of lawyers on an honest judicial battlefield.
Mr. Pompeo is a distinguished fellow at the Hudson Institute. He served as director of the Central Intelligence Agency (2017-18) and secretary of state (2018-21). Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.