Su­ing the Saudis only hurts the U.S.

Guess which na­tion ben­e­fits the most from sov­er­eign im­mu­nity

Bloomberg Businessweek (Europe) - - CONTENTS -

It’s not easy to de­fend an ob­scure le­gal doc­trine against claims for jus­tice from the vic­tims of the worst ter­ror­ist at­tack on U.S. soil. But do­ing so has be­come a ne­ces­sity, be­cause Congress has de­cided to re­write U.S. law on sov­er­eign im­mu­nity.

On May 17 the Se­nate unan­i­mously passed the Jus­tice Against Spon­sors of Ter­ror­ism Act, which au­tho­rizes U.S. courts to hear civil claims for mon­e­tary dam­ages against a for­eign state ac­cused of di­rect in­volve­ment in a ter­ror­ist act harm­ing an Amer­i­can cit­i­zen in the U.S. Un­der cur­rent law, al­most all for­eign na­tions are im­mune from law­suits in U.S. courts.

While the bill doesn’t name any par­tic­u­lar coun­try, it would en­able the Sept. 11 fam­i­lies to sue Saudi Ara­bia. Fif­teen of the 19 hi­jack­ers were Saudi cit­i­zens, and some of­fi­cials and mem­bers of the royal fam­ily have long been ac­cused of in­volve­ment in the plot. Pres­i­dent Obama has promised to veto the bill.

A veto would be well-deserved, and be­fore mem­bers of Congress try to over­ride it, they might want to con­sider the value of sov­er­eign im­mu­nity—and the na­tion that ben­e­fits from it the most. (Hint: They rep­re­sent it.) If other na­tions fol­low the Se­nate’s lead, no coun­try would be a big­ger, bet­ter, richer tar­get for law­suits than the U.S. In Cuba and Iran, courts have al­ready is­sued bil­lions of dol­lars in judg­ments against Wash­ing­ton. This po­ten­tial le­gal li­a­bil­ity would hang over the U.S. fight against global ter­ror­ism and leave the gov­ern­ment li­able for ac­tions by U.S. troops in Afghanistan, Iraq, Syria, and else­where. U.S. aid to Is­rael, for ex­am­ple, could leave it open to suits from Pales­tini­ans in­jured by Is­raeli troops. The en­tirety of U.S. for­eign pol­icy could be put on trial un­der the guise of seek­ing mon­e­tary jus­tice.

Ac­knowl­edg­ing the im­por­tance of sov­er­eign im­mu­nity doesn’t re­quire over­look­ing the Saudis’ role in the rise of Mus­lim ex­trem­ism. But the re­sponse to that ac­tiv­ity prop­erly re­sides in the realm of diplo­macy and trade pol­icy, not in court.

No one can deny the right of the Sept. 11 fam­i­lies to truth and jus­tice. They’ve al­ready re­ceived bil­lions from the vic­tim com­pen­sa­tion fund es­tab­lished by Congress, and two gov­ern­ment in­ves­ti­ga­tions spent years pro­duc­ing the 9/11 Com­mis­sion Re­port.

A more pro­duc­tive ex­er­cise of con­gres­sional author­ity would fo­cus on that re­port—specif­i­cally, the so-called 28 pages from the ini­tial Sept. 11 in­ves­ti­ga­tion that re­main un­der seal. Some law­mak­ers who’ve seen them say there’s noth­ing dam­ag­ing to na­tional se­cu­rity in them and they should be re­leased. Oth­ers say they’re filled with hearsay im­pli­cat­ing prom­i­nent Saudi cit­i­zens. A com­pro­mise isn’t hard to en­vi­sion: Re­lease the pages, along with an ex­pla­na­tion from the com­mis­sion as to why the al­le­ga­tions don’t hold up. Such an agree­ment would also serve the cause of truth and jus­tice—with­out jeop­ar­diz­ing Amer­ica’s moral and le­gal stand­ing in the rest of the world.

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