The concept of allowing U.S. citizens to privately sue foreign governments for acts of terror sounds worthwhile at first, but in practice, it would produce far more harm than good. Even the innocent actions of military, diplomatic, and other American personnel serving abroad may be used as an excuse to sue Washington under the idea, and America’s foreign policy goals and activities would be jeopardized.
Legislation permitting Americans to bring other nations to U.S. courts, known as the “Justice Against Sponsors of Terrorism Act (JASTA) became law in 2016. It was an outgrowth of public anger resulting from questions that arose from those who believe that Saudi Arabia may have had liability in failing to stop the 9/11 attacks that devastated New York’s World Trade Center and the Pentagon, as well as leading to the crash of flight 93 in Pennsylvania. However, the legislation wasn’t limited to the government in Riyadh, or to the events of 2001.
Some of the same members of Congress who voted for JASTA have had second thoughts, after realizing that Washington has far more citizens abroad, serving both as civilians and service members, than any other country. While they are not involved in anything that could rationally be considered terrorism, individuals hostile to the U.S. would use that charge to, at the very least, entangle Washington in an unending round of lawsuits based on questionable interpretations of their actions.
A Northeastern University study noted that concerns have been raised about retaliatory actions by both allies and adversaries abroad. Washington’s representatives overseas could be subjected to litigation by the citizens of the countries they are assigned to for causes which may be nonsensical, un-substantive, or merely an attempt to frustrate Washington’s policies and goals through litigation. As the world’s wealthiest nation, America would certainly be a prime target for lawsuits.
Writing for Lawnewz, discusses how “…The many critics of JASTA point to the geopolitical disaster likely to result from an American decision to strip foreign countries of their sovereignty. While such criticism may be hyperbolic, it’s entirely accurate to note that several American allies have already gone on record voicing their disapproval of JASTA. The Dutch parliament wrote to House lawmakers warning that it considers JASTA to be a ‘gross and unwarranted breach of Dutch sovereignty’ that could result in ‘astronomical damages.’ Likewise, French Parliamentarian Pierre Lellouche cautioned that JASTA would ‘cause a legal revolution in international law with major political consequences,’ and that as one example of those consequences, he would pursue legislation that would permit French citizens to sue the United States. And those are the remarks from countries unlikely to be sued under JASTA”
Retired Air Force Major General William Russell Cotney, in an interview published in The Tennessean noted: “JASTA will undermine our ability to defend our interests around the world. In their quest for justice against terrorism, Congress may be making the United States and our military and government officials more vulnerable than they are today.”
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Writing for the Lawfare site, Ingrid Wuerth notes “Collecting on any JASTA judgment may be difficult, …The immunity of foreign states from the execution of judgments is protected by different sections of the Foreign Sovereign Immunities Act…which are not amended by JASTA.”
The Northeastern study concurs. “Countries can and always have claimed legal authority over individuals and countries beyond their borders—referred to as ‘extraterritorial jurisdiction’—but it rarely goes anywhere. After all, nations need to enforce any judgments. This brings up a host of diplomatic and military issues, and most countries resolve such disputes through international bodies, not military force. This is relatively uncharted territory, because it represents a tension between international diplomacy, international relations, and legal liability.”
Peter R. Huessy, the President of Geostrategic Analysis presented another problem in a RealClearDefense article: “…In practical terms, JASTA does not do much to help the victims of 9/11. The idea that a state sponsor of terror would disclose its terrorism support activities in court, which by their nature are clandestine and ‘off the books,’ is absurd. Equally problematic is the idea that a state sponsoring terrorism would leave its assets in the United States where a court decision might attach them.”
Several senators, including John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) have proposed amending the law to restrict the right to sue only to governments that knowingly supported a terrorist organization, directly or indirectly, including providing funds. That change would, unfortunately, do little to address the many drawbacks to the legal concept.
The American public’s frustration, particularly over the past eight years, with Washington’s lethargic and ineffective response to terrorism is understandable. JASTA would do nothing to change that, and would, instead, lead to greater limits on what a more activist leadership in Washington could accomplish.
Frank Vernuccio, editor-in-chief of the New York Analysis of Policy and Government, originally published this article in The Hill.