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Published on September 29th, 2016 | by Thomas Lippman1
The 9/11 Lawsuit Argument: Echoes of the Past
by Thomas W. Lippman
Now that Congress had made it possible for families of 9/11 victims to sue Saudi Arabia, the United States may find out if all the dire consequences predicted whenever this issue has been raised in the past will actually come about.
Efforts to amend the 1976 Foreign Sovereign Immunities act in response to the grievances of U.S. citizens go back at least to the 1980s. Then as now, the target was Saudi Arabia. Leonard Garment, an influential Washington lawyer and lobbyist representing two men who had been tortured in Saudi jails, tried to persuade Congress to amend the law to allow them to sue. He came close to succeeding, but in the end Congress allowed legal action only against nations on the State Department list of sponsors of terrorism. Saudi Arabia has never been on that list.
At the time the State Department convinced lawmakers that opening the door all the way would subject the United States and American officials to similar legal action in foreign courts and could be a threat to members of the U.S. Armed Forces carrying out their missions—the same argument Congress rebuffed this time.
Similar arguments were raised in the 1990s when the world’s nations were establishing an international court to prosecute war criminals.
Their objective was to create a permanent institution that would have jurisdiction to put suspected war criminals on trial when there was no prospect that their own countries would or could do so. International courts already existed to deal with atrocities in Rwanda and Bosnia; creating a single institution would eliminate the need to set up a new tribunal every time.
The United States supported the new court in principle but insisted on an exemption for itself, raising what might be called the My Lai argument. What if, at the time the My Lai massacre in Vietnam was revealed, there had existed a free-standing war crimes court and an independent prosecutor with the authority to indict suspects? Should such a prosecutor have been able to go after Lt. William F. Calley’s superior officers or individual troops under his command at My Lai? What if Gen. William Westmoreland, the overall U.S. commander in Vietnam, went traveling in Europe after his retirement and was nabbed by some zealous prosecutor who wanted to hold him responsible for civilian deaths?
In the final negotiations in Rome in 1998, the Americans sought guarantees that no U.S. citizens would ever be subjected to the court’s jurisdiction. They argued, in effect, that “we’re the ones who respond when the world dials 911, and if you want us to keep responding, you should accommodate our views.” William Cohen, defense secretary at the time, even suggested to his European counterparts that the United States would consider withdrawing its forces from Europe if American-sponsored amendments to the treaty text were not accepted.
The United States found little sympathy. Representatives of other countries resented the U.S. argument that its troops always did the right thing and that, if they didn’t, the U.S. justice system could be counted on to deal appropriately with any reported criminal behavior. Delegates were well aware that none of Calley’s superior officers was ever punished for the mass deaths of Vietnamese civilians. On the last day of the five weeks of negotiations, the package of amendments the United States sought was rejected, 115 to 17. To this day the United States has not joined the International Court.
The current defense secretary, Ash Carter, raised pretty much the same arguments in the Obama administration’s unsuccessful effort to head off a presidential veto of the “Justice Against Sponsors of Terrorism Act,” or JASTA.
In a letter to William M. “Mac” Thornberry, chairman of the House Armed Services Committee, Carter said that “While we are sympathetic to the intent of JASTA, its potential second- and third-order consequences could be devastating to the Department [of Defense] and its service members, and could undermine our important counterterrorism efforts abroad.”
Opening the door to lawsuits against foreign countries by individual Americans or groups of U.S. citizens, he said, could expose Americans abroad to similar actions in foreign courts. “Such lawsuits could relate to actions taken by members of armed groups that received U.S. assistance or training, or misuse of U.S. military equipment by foreign forces,” Carter warned.
Whether the United States or any members of the armed forces actually committed atrocities or acts of terrorism or supported organizations that did so in violation of a foreign country’s law would be irrelevant, Carter argued. “Instead, the mere allegation of their involvement could subject them to a foreign court’s jurisdiction and the accompanying litigation and intrusive discovery process that comes goes along with defending such lawsuits,” he wrote. Such lawsuits might lead to monetary damage awards against the United States, Carter said, which “could lead to efforts to attach U.S. government property to satisfy those awards. Given the broad range of U.S. activities and robust presence around the world, including our Department’s foreign bases and facilities abroad, we would have numerous assets vulnerable to those attempts.”
Moreover, he told Thornberry “it is likely that litigants will seek sensitive government information in order to establish their case,” potentially leading to the exposure of classified material. He raised the specter of military personnel and civilian contractors being subjected to subpoenas, forced to give depositions, and jailed for contempt of court if they refused to comply.
In the case of the International Criminal Court, the United States walked away rather than expose itself and its citizens to legal action by foreigners. Now Congress has gone the other way, creating the very exposure that past administrations sought to avoid.
For the 9/11 families, whose powerful appeals for justice prevailed over the administration’s arguments, enactment of the bill hardly guarantees that they will prevail in court. Proving that the government of Saudi Arabia or any of its high officials supported the attacks on the World Trade Center and the Pentagon would be difficult because no evidence to that effect has ever emerged, and individuals outside the United States are not subject to the U.S. courts’ jurisdiction. The mere fact of the legislation, however, seems certain to infuriate the Saudis. The record shows that the 70-year alliance between Saudi Arabia and the United States has survived many serious grievances on both sides. Whether it will survive this one may depend on what happens in federal court.
Photo: Former Secretary of State Condoleezza Rice chats with member of the Saudi royal family (courtesy of U.S. Department of State via Flickr).