If you're killed in the terror war, you may not be insured

LouPaulsen LouPaulsen at attbi.com
Wed Dec 4 06:30:15 MST 2002

[Note: I'm not entirely sure this is a real news story - Lou Paulsen]

Tuesday, December 2, 2002
Copyright © Las Vegas Review-Journal

Hard to insure against terror war errors, Nevadans find

In the wake of press reports that the U.S. armed forces may kill civilians
anyplace and anytime in the pursuit of their global war against terror, some
consumers have been contacting their insurance agents to make sure that they
are covered by their life policies in such an event.  But they are getting
responses they don't like.

"I was told that I was on my own, basically," said Hassan Marghouti, an
Islamic man insured by Connecticut General.  "If I am mistakenly killed by
the government, they won't pay my family a cent."

Marghouti, who says he is not an al-Qaeda combatant, operates his own
software consulting business in a hi-rise tower on Henderson St.  "I am not
criticizing government policies, I am just trying to do financial planning,"
he said,  "If someone tells the government I am with al-Qaeda and they kill
me, and then they go 'Oops, mistake!', what do my wife and daughter do then?
I have no insurance for this now."

Independent agent Jack Ribas, who sold Marghouti his 20-year term policy,
confirms this.  "There's not a lot we can do," he said.  "All the life
insurance products we carry exclude 'acts of war'.  It's pretty clear that
if the U.S. armed forces kill you in the mistaken belief that you are an
al-Qaeda combatant, or with a stray shot, that counts as an 'act of war.'"

"It might be that the free market will take up the slack," says Ribas.  "A
niche product could be fielded that would fill this risk gap for an
increased premium.  But nobody is willing to field it yet until they have
some sense of what the numbers will be."

Attorney Bill Clement, who holds the rank of Colonel in the Nevada Air
National Guard, believes there will undoubtedly be more such cases as the
war against terror progresses.  "We know that there are many al-Qaeda
combatants on U.S. soil," he told me, "some of whom are U.S. citizens.
Others are what we call 'support combatants', providing them with money,
supplies, propaganda support, and legal services. The armed forces can take
them out at any time without having to concern itself with constitutional
technicalities.  But nothing is one hundred per cent perfect.  Mistakes can
and will be made.  It's just part of the price we all pay for living in a
free society."

Civil rights attorney Jennifer Weintraub believes this adds a new and
troubling dimension to the terror war.  "We know that the government has
successfully claimed in the [José] Padilla case that they can detain a U.S.
citizen, in the middle of O'Hare airport in Chicago, without reference to
his constitutional rights if they believe he is an enemy combatant.  They
had no legal obligation to merely restrain him, though.  They could have
killed him on the spot, just as they killed a U.S. citizen in Yemen because
he was traveling with a suspected enemy combatant.

"It's only a matter of time before there are cases of U.S. citizens being
killed on U.S. soil because they are suspected of being enemy combatants.
But some of them won't be, and others will just be caught in the cross-fire,
and then their families will be shocked to discover that they aren't even
insured.  We should probably start making plans to deal with the situation."

To make matters worse, it's not clear if their survivors would be able to
sue for negligence.  "I wouldn't take such a case," says Jeffrey Costa of
the Nevada Trial Lawyers' Association.  "Killing suspected combatants seems
to me to fall squarely within the discretionary function exemption of the US
Tort Claims Act.  You can only sue the government with its consent,
basically, and they don't consent to be sued in cases where their judgment
has to be questioned after the fact.

"There might be a case if they were completely negligent, like if they put a
missile into your house because someone is just careless, for example if
they are reading the house number upside down.  But that's not going to be
the usual case."

Democratic Congresswoman Shelley Berkley, of Nevada's 1st District, says
that there is little likelihood that the Republican-controlled congress will
do anything to change the situation.  "I believe we should explore ways to
remedy the situation through legislation.  There are two ways to go about
it.  One would be to pass a law stating that mistaken killing of U.S.
citizens would not be construed as being 'acts of war' and would not trigger
the exclusion in the policy language.  Another would be to set up a fund to
compensate citizens who were killed or injured in such a way.

"However, there's very little sentiment for creating new categories of
government expenditure, and the Republican congressional leaders are very
friendly to business and would probably resist any additional regulation of
the insurance industry."

State legislation is also possible.  Insurance Commissioner Alice
Molasky-Armon has the task of conducting a December 19 hearing on the
subject, but state Sens. Mark James and Ray Rawson have taken the initiative
of calling for an interim legislative commission to study and debate this
complex issue.

"The buck stops with the Legislature because the Legislature is going to
make the ultimate decisions on this issue, the Legislature and the
governor," attorney James says. "But probably this will take second place to
the malpractice insurance issue, which is very far from being resolved."

Jack Allen is an insurance agent who is uncomfortably close to the issue.
His office is in the same building on South Third Street as the Nevada Civil
Liberties Union.

"There are Arabs who come in this building," he says.  "I don't know who
they are.  I don't have any guarantee that they aren't combatants.  They
might decide that the NCLU is giving them aid and comfort and count as
combatants themselves.  There could be a military operation here at any
time, and I'm not even insured against it myself!  When my lease expires in
June, I'm going to look at my choices."

Marge Kolewits, of the Nevada Consumers' Association, says that this
situation creates a fair amount of worry in communities where the risk of
being killed by U.S. government activity is perceived as high.  "We're
talking about the Arab, Muslim, and South Asian communities, and also there
are some worries on the UNLV campus where there have been anti-war protests,
which might be considered as supportive of terrorist goals.  Nobody is
claiming that people who are really with al-Qaeda should collect on their
insurance policies.  But people don't realize that this affects everyone.
You might be in the car next to the car that is destroyed by a drone, and a
piece of shrapnel could kill you or permanently disable you, and the safety
net of insurance won't be there."

Until there is a better solution, consumers will have to manage their own
risk, says Kolewits.  "Try to avoid high-risk situations and people.
Explore self-insurance plans for groups in high-risk communities.  For
example, the congregation of a mosque might pool their own funds to create a
self-insurance plan covering accidental deaths from US government action.
And, in the long run, nothing beats a really good 401k plan."

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