Senate Votes to Allow 9/11 Families to Sue Saudi Arabia. Will the U.S. Be Sued Over Drone Strikes Next?

Stripping foreign officials of immunity from lawsuits works both ways.

Kentannenbaum/Dreamstime.com

By a unanimous voice vote yesterday, the Senate passed the Justice Against Sponsors of Terrorism Act (JASTA) which would remove the immunity enjoyed by foreign governments from lawsuits filed by the families of victims of terrorism on U.S. soil.

President Obama has promised to veto the bill — which will be taken up by the House at some point — though the overwhelming support in the Senate may indicate the president's veto could be overridden. The Saudi government has threatened to dump $750 billion in U.S. assets if the bill becomes law, and Saudi Foreign Minister Adel bin Ahmed Al-Jubeir said earlier this month that removing foreign immunities "would turn the world for international law into the law of the jungle."

There is something to be said for this. Laws that apply to international relations are generally recipricoal — think the Visa Waiver program which we've covered extensively at Reason — and if the Saudis can be sued over mid-level operatives in their government allegedly supporting the 9/11 hijackers, what's to stop the victims of errant U.S. drone strikes in Pakistan or Yemen or anywhere from suing officials in the U.S. government? 

In a New York Times op-ed last month, law professors Curtis Bradley and Jack Goldsmith speculated that JASTA could even make the U.S. liable for the actions of other governments:

It is easy to imagine the United States being sued abroad as a result of the military and other foreign aid it gives to many nations. A great deal of behavior traceable to American financial and material support — for example, aid to Israel that is said to result in displacements or killings in the West Bank, or to United States-backed rebels who are accused of attacking civilians in Syria — might result in a lawsuit abroad for aiding and abetting terrorism.

The debate over JASTA comes at a time when U.S.-Saudi relations are further complicated by increasingly prominent calls for the highly classified "28 pages" of a joint congressional inquiry into 9/11, which many current and former congresspeople claim implicates a number of Saudi government officials, to be made public. 

Comments

[Heroic Mulatto]

"would turn the world for international law into the law of the jungle."

Isn't that the thesis of the predominate "realist" school of foreign policy? That international law is really nothing more than 'might makes right'?

[Playa Manhattan.]

Laws of the jungle, eh? I like the sound of that.

[Heroic Mulatto]

First Law of the Jungle

[mad.casual]

Just say a word and the boys will be right there
With claws at your back to send a chill through the night air
Is it so frightening to have me at your shoulder?
Thunder and lightning couldn't be bolder
I'll write on your tombstone, I thank you for dinner
that we animals play is a winner

[LynchPin1477]

Point: foreign relations are a good analog for what an anarchist society would look like.

Discuss.

[Heroic Mulatto]

Again, that is a central axiom of the Realist school of international relations.

[GILMORE?]

...meh. There's some very very very big differences that make the analog a poor one.

States don't really "Live with each other" most of the time.

Apart from international trade, they can mostly pretend to be in different universes. The ability to 'leave each other mostly alone' allows the fiction of something like the UN to persist; we pretend there's rules and a governing body, and some people even comply with that body's directives when its seen as a means to improving their lot.

Whereas people living inside an 'anarchist society' making direct, immediate claims on shared resources would be forced into constant questions of "who decides?"

I suppose you could argue its just a matter of scale; but i think scale really makes huge differences in the types of dynamics that dominate.

[Heroic Mulatto]

I suppose you could argue its just a matter of scale; but i think scale really makes huge differences in the types of dynamics that dominate.

I don't see how scale makes a difference in the fact that if we accept the axiom that international relations are anarchic, that sovereign entities have decided to form associations of mutual aid and defense without compulsion from a higher power. Why wouldn't that work on the micro-scale as well? Much less smaller scale versions of the Pax Americana, Britannica, Mongolica, etc.?

[GILMORE?]

Why wouldn't that work on the micro-scale as well?

Realist theory of international relations presumes the 'smallest unit' is The State.

What do you think happens when one unit stops being a 'state' in that system, and instead becomes some some sort of anarchist collective co-operative or whatever?

I'm sure someone (*many someones) has/have already written piles of academic theory on how 'stateless international relations' might function. I'm not sure its really all that useful/helpful in any practical sense.

(though probably has some applicability vis a vis how we're currently dealing with the "Islamic"-civilizaiton writ-large... and i don't mean ISIS - i mean the Huntington 'clash' between Islam and the Western notions of legitimate statehood)

[Heroic Mulatto]

Well, that's the point, innit? As I've argued before, the Westphalian nation-state is a concept that is only applicable to a very narrow geo-political, cultural, and temporal milieu, and the current "Brave New War", as documented by John Robb, is daily evidence that its forced relevance from the 19th and 20th century pounding of square pegs in the round holes of Africa and Asia is quickly ending.

[GILMORE?]

the Westphalian nation-state is a concept that is only applicable to a very narrow geo-political, cultural, and temporal milieu

Maybe. I have yet to see any evidence that the "quickly ending"-bit is actually happening. Or good arguments why that would be the case.

The only fairly novel idea i've seen in my lifetime is the "Clash of civilizations" bit which suggested "culture/civilizationism" may be a possible Supra-State element which traditional realist theory doesn't entirely account for.

Am i supposed to be familiar with this Robb cat?

[Heroic Mulatto]

I learned of Robb's work via Reason, actually. Writes a lot on 4th Generation warfare.

[Citizen X]

pounding of square pegs in the round holes of Africa and Asia

Phr... phrasing?

[You Sound Like a Prog (MJG)]

Assume Anarchy?

[Scarecrow & WoodChipper Repair]

s/anarchist/chaotic/

[GILMORE?]

"would turn the world for international law into the law of the jungle."

Isn't that the thesis of the predominate "realist" school of foreign policy?

If by "thesis" you mean "part of the base assumptions"... yes. By definition the international system is in a state of Anarchy - something i'd think many people here don't see in de-facto negative terms.

Its not such a crazy POV. Its simply acknowledging that there is no "Supra-Government" to impose "rules" between states (*the illusion of the UN be damned). All rules are self-imposed, voluntarily agreed upon, and only enforced when enough of them decide they *have to* else the entire system be seen as the charade it is.

That international law is really nothing more than 'might makes right'?

No. that's a leap from acknowledging disparity in power-relations to suggesting there's any moral *justification* being made in how they're utilized.

The mere existence of a difference in power doesn't "justify" its use. It explains it, but isn't any attempt to say its "right". It just is.

[Heroic Mulatto]

No. that's a leap from acknowledging disparity in power-relations to suggesting there's any moral *justification* being made in how they're utilized.

The mere existence of a difference in power doesn't "justify" its use. It explains it, but isn't any attempt to say its "right". It just is.

Yes, I get the realpolitik P.O.V., I meant the phrase more in its earlier sense, which is basically the same thing you're saying.

[GILMORE?]

Isn't that the thesis of the predominate "realist" school of foreign policy?

Also, I think the idea that 'realism' is a 'school' which 'predominates' is sort of misleading.

its more just a description of the base-level theory on top of which you can have 1000s of different kids of "Policy Schools"

i.e. calling someone a Realist is like calling someone a believer in Gravity. Its an observation that "this is how things function". it doesn't by itself explain everything in the universe - and in fact, doesn't even explain itself.

There ARE people who disavow realist assumptions and argue for entirely Idealistic systems of international relations. (* as I presume there are physicists who argue Gravity is an illusion); I think the "Proletarian internationalism" idea is sort of along these lines. But inevitably everyone in the Foreign Relations world is "some version" of a realist at certain points, when they have to deal with "What Is" rather than "what should be"

[Heroic Mulatto]

I think you're making a distinction without a difference. I don't see the great sin in stating, for example, that scientific realism is the predominate philosophy of science. As per your example, while there are some committed Popperian scientists out there, they still have to be able to speak the language of the scientific realists in their daily work.

[GILMORE?]

I meant more that i think "Realist" is something people should resist using simply as one Label among many .... as though its analogous to "Republican" or "Democrat" or "Socialist" or whatever. "one choice among many competing ideas". Its more of a base-level assumption by which all of the above labels co-exist on top of.

(*news media do this all the time - particularly in suggesting that "Kissinger" was the Realist poster-boy, and pretending that everyone else since has since followed more-enlightened, alternate theories...though they're never quite clear on what the alternatives actually are)

[DEATFBIRSECIA]

Well, the drone strikes are of dubious legality (especially when snuffing Americans) so maybe some court somewhere should rule.

Supreme Court sure as hell won't be providing clear guidance so why the fuck not?

[Jerryskids]

Look, it says right in the name that it's justice *against*, not justice *for*. You must be some kind of American-hating liberal if you want justice to be used against America.

[waffles]

You can't sue a drone! They don't have any money!

[Eternal Blue Sky]

They have assets, though, right?? I'll settle for one of the missiles.

[Playa Manhattan.]

Obama is vetoing a bill that was unanimously passed by the Senate?!? I thought he was all about bipartisanship and reaching across the aisle to get things done!

"Will the U.S. be sued over drone strikes next?"

Who cares? We're the United States. We play by our own rules.

Any lawsuits filed in the US will get tossed immediately. And good luck enforcing a judgment against the United States in foreign court; we control the banking and financial systems for most of the rest of the world.

[Renegade Jew]

Any lawsuits filed in the US will get tossed immediately.

Crosspatch Decision.

[Heroic Mulatto]

RENEGADE

[Pan Zagloba]

Renegade?

[Renegade Jew]

RENEGADE.

[Tonio]

But foreign powers will be able to arrest former (possibly current) US officials on their own soil. That could get messy.

[Playa Manhattan.]

That's already the case. There are several places that GWB doesn't travel as ex-president.

[R C Dean]

Its been 15 years. Isn't there a statute of limitations here? Generally speaking, you can't sue for wrongful death or injuries more than, say, three years after the event. The statute may have been "tolled" for something like this, couldn't say, but this may all be pure kabuki, with nobody actually being able to sue Saudi for 9/11.

[mashed potatoes]

Well, any Syrian killed by Al-nusra or ISIS with US TOW missile or arms can probably sue USG for material support of terrorist groups.. heck most of Libya people too.

[mashed potatoes]

ok, didn't really read it. says that in the article

[LynchPin1477]

I'm not so sure that holding governments' feet to the fire more often is a bad thing.

[mad.casual]

Except that the government is only held accountable on paper and any settlements will come out of the usual coffers with consequences unknown or damned a priori.

Much like domestic policing actions.

[mashed potatoes]

But really, isn't this the equivalent of making police union pensions pay or something.. good. maybe USG and other countries less likely for this kind of stuff.

Also, aren't countries already held financially responsible for acts of violence. Germany had to pay up as restitution for WW1 and WW2.

[LynchPin1477]

Also, aren't countries already held financially responsible for acts of violence

On the scale of German reparations, I think that's only if you lose.

But the US does pay for some types of collateral damage

[Tonio]

Germany had to pay up as restitution for WW1 and WW2.

See Heroic's first comment above, about might making right. It is widely held that the reparations for WW1 were one of the circumstances leading to WW2. Citizens of then-Imperial Germany had absolutely jack to do with starting WW1, yet they had to pay for it.

[mashed potatoes]

Oh, I understand that WW1 reparations were a disasters. Just challenging the Saudi implication that foreign immunity was meant as some sort of shield to deflect responsibility.

[Eternal Blue Sky]

Well they lost. And as /everyone/ knows, the side that looses the war is:
-The Villain
-The Reason the War was started
-Responsible for all damages
-Guilty of War Crimes
-And free to be carved up and have its land redistributed.

[Rasilio]

" what's to stop the victims of errant U.S. drone strikes in Pakistan or Yemen or anywhere from suing officials in the U.S. government?"

Um, the bigger question is can anyone come up with a legitimate legal or moral reason why they SHOULDN"T be able to sue Uncle Sam when he mistakes a wedding for a Jihadi training camp?

The drone strikes are at best of questionable legality both under US and International law and when we screw up with them shouldn't we be responsible for compensating the victims?

That said while they could sue there really isn't much of anything anyone could do to enforce the results of the suit. If they sued in a US court they would lose on the basis of Sovereign Immunity and if they sued anywhere else the US has about 7100 reasons, all of which make things glow in the dark, why the US could just ignore that suit if it wanted.

[R C Dean]

can anyone come up with a legitimate legal or moral reason why they SHOULDN"T be able to sue Uncle Sam when he mistakes a wedding for a Jihadi training camp

The idea that every war should generate a tsunami of personal claims is, really, pretty ludicrous. In actual wars, the "legitimate moral and legal reasons" don't apply.

The problem is, these aren't really wars. So, I would be comfortable saying that, when the US has actually declared war (in those words) against a sovereign, no damages. If we kill or injure people outside of a real war, then I can't think why they shouldn't be able to sue.

[Rasilio]

That was my reasoning as well.

If we had declared an actual war against those countries then of course we couldn't be sued, it is a war and people get killed in wars. But we havn't declared war with any of the countries we are droning and in a couple of their cases we are in theory at least actively allied with the country in question

[Eternal Blue Sky]

"and if the Saudis can be sued over mid-level operatives in their government allegedly supporting the 9/11 hijackers, what's to stop the victims of errant U.S. drone strikes in Pakistan or Yemen or anywhere from suing officials in the U.S. government?"

I don't see why this is a problem.

[mad.casual]

See domestic policing.

[invisible finger]

Reason now saying two rights make a wrong. Oy.

[BYODB]

You don't sue over things like that, you declare war. Obviously, you should probably try to declare war on the right country in that scenario. Why distract yourself from the war part though?

[CatoTheChipper]

what's to stop the victims of errant U.S. drone strikes in Pakistan or Yemen or anywhere from suing officials in the U.S. government?

Sounds like a good idea to me.

[AD-RtR/OS!]

So, you're saying that stripping our government functionaries of Sovereign Immunity is a bad thing?
I say, let them stand naked defending their actions to everybody.

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