Opinion: Salvaged ‘justice’ act will have bad consequences


Bruce Lohof

On Wednesday, the U.S. Congress overrode President Obama’s veto of the so-called “Justice Against Sponsors of Terrorism Act” (JASTA). The act permits 9/11 families to sue the Kingdom of Saudi Arabia for any role that it might have played in the tragedy.

Sadly, Montana Sens. Steve Daines and Jon Tester and Rep. Ryan Zinke supported the override.

There are two dollops of feel-good in JASTA. It expresses once again our abiding sympathy for the 9/11 victims and their survivors. And, hey, who doesn’t love to hate the Saudis? Amid the dollops, though, JASTA’s unintended consequences make it a bad idea.

For one, suing the Kingdom for its alleged collusion in 9/11 is almost certainly a litigation too far. In 2004 the National Commission on Terrorist Attacks Upon the United States (aka the 9/11 Commission) “found no evidence that the Saudi government as an institution or senior Saudi officials” were conspirators in the attacks. The commission investigated the tragedy for 19 months and, it is said, interviewed more than 1,000 individuals in nearly a dozen countries, and reviewed more than 2½ million pages of documentation.

Will the litigation made legal by JASTA investigate more vigorously? It’s hard to imagine. Will it find some evidence of Saudi guilt? Again, it’s hard to imagine. Poses will be struck and attorneys will be enriched. For the survivors, however, there is another agonizing, heartbreaking rollercoaster ride ahead.

Long after the litigations have concluded, though, JASTA will continue to threaten what’s known in the trade as “sovereign immunity,” a tradition that since the 16th century has discouraged—and often prohibited—citizens from suing a foreign government. It is the tradition of sovereign immunity that protects a government and its officials—diplomatic, military and otherwise—from prosecution by a foreign national.

What happens when this fundamental tenet is weakened by legislation such as JASTA? A recent op-ed in the New York Times puts it right in your face: “If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad.” Turnabout is fair play.

For instance, supporters of JASTA might fast-forward 18 months beyond 9/11 to “Shock and Awe,” the Pentagon’s March 2003 aerial bombardment of Baghdad. Three thousand civilians, mostly Americans, died in 9/11. More than twice as many Iraqi civilians—estimates hover at 7,300—were killed by Shock and Awe. Should their survivors be encouraged to sue the U.S. government? Or its Air Force? Or its pilots? I think not. Does JASTA encourage exactly that? I think so.

If Shock and Awe is too hypothetical, too exaggerated, perhaps Zinke could have informed his vote with a more measured example of unintended JASTA consequences. We are not privy to his activities as a U.S. Naval officer. Nor should we be. He served with distinction, I’m confident. As a SEAL commander, though, he must have done some things that would raise a foreign national’s bile to the level of litigation or beyond. Fortunately—and thanks to sovereign immunity—it didn’t matter.

It is meet and right to honor 9/11’s victims and to provide succor to their survivors. Can we not find ways that do not impair the tenet of sovereign immunity, a tenet that has protected governments and their sworn officers for 500 years? Or shall we enjoy a few dollops of feel-good and let the future fend for itself?

Bruce A. Lohof is a native of Montana. A former professor and a retired diplomat, he lives in Vienna and in Red Lodge.

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