A significant amount of misinformation swirls around the debate regarding the Justice Against Sponsors of Terrorism Act or JASTA. The focus belongs on JASTA’s grave implications for our nation’s sovereignty — our very ability to rule ourselves.
“We the People” declared that we will only subject ourselves to laws created by our elected representatives. We can no longer hold other nations to that standard if our own law, in the form of JASTA, violates it.
Certainly, a person who commits a crime in a foreign country subjects himself to that country’s laws and sanctions. But that person’s actions do not implicate his own country. Individual acts create legal issues, while national acts create diplomatic or military issues. That distinction is fundamental to maintaining status as a state, and JASTA further erodes it.
I say “further” because JASTA is not the first time we edged ourselves away from the slippery sovereignty slope. We have been sliding slowly downward since Congress passed the Foreign Sovereign Immunities Act of 1976, creating jurisdiction in federal courts to adjudicate some matters that were, until then, treated as the executive branch’s foreign policy prerogative.
Intervening legislation reveals some of the self-inflicted frustration that comes with treating nations as tort defendants.
The “Victims of Trafficking and Violence Protection Act of 2000” gave certain victims of international terrorism the right to recover their damages from the U.S. government in lieu of execution against property owned by the state sponsor of the terrorism that created the injury.
Congress later passed the “Terrorism Risk Insurance Act of 2002” giving individual victims/plaintiffs the power to directly attach frozen assets of terrorist states (some of which we returned to Iran, ironically, by executive order of Barack Obama). If there is a way to render terrorist states financially responsible for harm to individual Americans, we do not seem to have found it yet. JASTA adds nothing good that harm does not outweigh.
It was already permissible under law, pre-JASTA, to sue governments or people who directly funded terrorism on American soil in American courts. What JASTA changed was that it opened up for discovery in American courts suits against alleged indirect funders of terror. This popular but misguided legislation could open Americans up to frivolous lawsuits in foreign courts while it clogs up our own courts with protracted discovery disputes.
Let’s remember, 9/11 resulted from Osama bin Laden’s call for jihad in 1996 and 1998. The infamous jihadist attacks on September 11, 2001, were executed by Islamic fundamentalist terror organizations that are by definition outlaw organizations which operate outside both U.S. and international law.
Supporters of JASTA say that it was a narrowly written exception to existing law, tailored to allow the 9/11 survivors to sue Saudi Arabia for any alleged involvement in those awful attacks. But nothing in JASTA limits its reach to Saudi Arabia or limits its scope to the 9/11 attacks, and nothing in it expands the remedies against the terrorist organizations known to have perpetrated the attacks in the first place.
JASTA sends the dangerous signal that America really doesn’t respect the sovereignty of other nations to govern their peoples. And other nations are in turn saying, “OK, if you won’t respect our laws and our governance then we won’t respect yours.”
The sort of legislation being considered could open up American politicians, businessmen and soldiers, among others, to lawsuits and default judgments the world over. Such encroachments on our sovereignty would not have sat well with America’s own Founders.
One of the Founders’ complaints against George III, set forth in the Declaration of Independence, was that he had “combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts of pretended Legislation.” Under JASTA, American plaintiffs would still have to prove their case against foreign officials, but it doesn’t take much to start a lawsuit.
Soon, other nations with their own knockoff JASTA laws will do the same. When that happens, many Americans will be sued in foreign courts that don’t give us the same sorts of rights that defendants have in our courts.
The Founders would be aghast at such an outcome, and so should we. If we think some very basic principles of American governance should be upheld, then JASTA’s got to go.
