by Paul R. Pillar
The recent passage by the U.S. Senate of a bill labeled the Justice Against Sponsors of Terrorism Act elicited cheers from those wanting to see any kind of significant bipartisan action in Congress. The bill is intended to amend existing law regarding sovereign immunity to make it easier for U.S. citizens to haul foreign governments into U.S. court for involvement in the 9/11 terrorist attacks; Saudi Arabia is the unnamed but obvious target. And as Daniel DePetris put it in his informative piece on the subject, “who wouldn’t support granting the 9/11 families a measure of justice?” But the bill, which Republican John Cornyn and Democrat Chuck Schumer pushed through the Senate by unanimous consent, raises even in its current amended and watered-down form some considerations that those giving bipartisan assent did not appear to think through carefully.
There are sound reasons behind the concept of sovereign immunity, which is incorporated into the decades-old statutory law that would be amended. The reasons apply just as much to terrorism as to other subjects. The reasons involve the effectiveness of U.S. policy and not only conformity with customary international law. Lawsuits against foreign governments affect foreign relations and in effect become part of the foreign policy of the country where the litigation occurs. If there is to be any chance for a foreign policy to be coherent, it must be the product of the policy-making branches of government. It cannot be the inevitably haphazard product of individual lawsuits, the occurrence of which depends on the initiative of individual complainants and the results of which depend on the facts of the individual case, the skill of individual lawyers, and the judicial philosophy of individual judges who happen to get the cases.
Grievances also typically flow in two directions. Reciprocity and revenge thus become considerations. The authors of this bill do not seem to have taken full account of what other governments may do regarding handling of their complaints, or their citizens’ complaints, against the United States.
Handling grievances against foreign governments through diplomacy rather than trying to do so unilaterally through one’s courts is the only way one’s own government can bring all available leverage to bear regarding all outstanding issues, and in so doing to pursue one’s own national objectives as effectively as possible. Those objectives may themselves involve international terrorism. An example were the Algiers Accords that served as the instrument for resolving the Tehran hostage crisis of 1979-1981. A key provision of the agreement was that both Iran and the United States agreed to end individual litigation of each side’s claims against the other. Regardless of what one may think of the Algiers Accords—and aspects of them still have a bad odor, including the way the Iranian regime manipulated the timing of negotiations relative to the U.S. election cycle—they got the American hostages back. Shouldn’t the freedom of those hostages, who were victims of international terrorism, have gotten at least as much consideration as hypothetical future compensation for family members of other victims of terrorism?
There always have been trade-offs between the harms levied on individual citizens by foreign countries and broader foreign policy considerations involving those same countries. Terrorism is only one possible connection between a policy of a foreign government and harm, including lethal harm, inflicted on one’s own citizens. Pollution-friendly policies of foreign states, for example, impair the health of people in other states. And for any state with conscription, individual citizens may be made to fight and to die in a war that was some other state’s fault. Given the difficulty often encountered in collecting from a foreign government that does not recognize the jurisdiction of the court that rendered the judgment, resorting to individual litigation often is not the best way to see justice served.
The substantive issues involved in the terrorism matters at hand in the current bill are, for at least two reasons, not very judiciable. One reason is the difference in standards of evidence applied in courts and those applied to executive branch decisions. The first is more demanding than the second. Many executive branch decisions in foreign policy involve having to make choices in the face of much uncertainty, which is much different from proving something beyond reasonable doubt in a court of law. This distinction comes up all the time in the handling of individual suspected terrorists. It is one of the reasons, in addition to Congressional resistance, that the Obama administration has not been able to empty the detention facility at Guantanamo. There is enough information on some of the detainees to decide, as a matter of executive branch prudence, that they would be dangers if released, but not enough information or the right kind of information to serve as evidence that would assure a conviction in a court.
The other reason involving judiciability concerns the nature of the state involvement in question. Saudi Arabia’s policies and practices and specifically its use of religious ideology have for many years fostered extreme and intolerant versions of Islamism, including the violent form that manifested itself in the 9/11 attacks. Indeed, Saudi policies in this regard have had harmful effects in ways that go far beyond 9/11 or even international terrorism generally. It is proper for these matters to be a major focus of U.S. policy toward Saudi Arabia. But the connections between Saudi policy and 9/11 are of a much more general and indirect sort than what normally makes for a tort that can be the basis of a cogent lawsuit. Notwithstanding all the malign effects of the Saudi regime’s handling of Wahhabism, no direct link has surfaced publicly between that regime and the 9/11 operation. An undesirable and counterproductive result would be for someone to try to make a lawsuit out of the matter and then, because of the insufficiency of suitable evidence, to lose the suit.
The bill that passed the Senate is thus another example of a feel-good measure that gets broad political support but that would entail significant problems if it ever were to be enacted. Underscoring this observation are two ironies and inconsistencies involving this bill.
One is that the Senate action comes not long after a decision by the U.S. Supreme Court upholding a previous act of Congress that took a matter of victims’ compensation for state-sponsored terrorism out of the hands of litigants and had the policy-making branches decide it instead. The specific case concerned whether assets of the Iranian central bank were fair game for lawsuits seeking individual compensation for terrorism in the 1980s by Iran’s client Lebanese Hezbollah. Two of the justices dissented because the statute under consideration short-circuited pending litigation, making it look as if Congress was ordering a court how to decide a case before it. But a majority of the Supreme Court agreed with both Congress and the Obama administration that this was a proper matter for the policy-making branches to determine, regardless of any lawsuits that had already been initiated.
The other irony and inconsistency is that many of those who are supporting the Cornyn-Schumer bill’s movement into the courts of a response to international terrorism have long been proclaiming that terrorism is “war” not “crime” and have done their utmost to prevent accused terrorists from being tried in federal court. This is even though the federal judicial system has demonstrated repeatedly that it is well-suited to try fairly and to punish effectively individual accused terrorists. Now by attempting to make states into defendants in civil suits in that same federal court system, the courts are being given a job for which they are poorly suited. States cannot be put in the dock or cross-examined, and their cases inevitably get into foreign policy issues. This combination of uses and non-uses of the courts—to put states on trial but not to put individual suspects on trial—has it all backward.
This article was first published by the National Interest and was reprinted here with permission. Copyright The National Interest.