False Arguments Aside, White House Knows JASTA is Only a Threat to U.S. Government Hypocrisy in War on Terror

By Brian P. McGlinchey

Following a meeting with Saudi Arabian Foreign Minister Adel al-Jubeir, U.S. Secretary of State John Kerry told reporters the two explored how to “fix” a recently-passed law that cleared the way for 9/11 survivors and family members to sue the kingdom for its alleged support of the hijackers.

Kerry and al-Jubeir both claimed JASTA puts at risk the entire concept of sovereign immunity, which limits the rights of individual people to pursue justice for the crimes of governments. “If this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants,” said al-Jubeir.

Kerry also repeated previous Obama administration claims that JASTA threatens those serving in the U.S. military. “We discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities,” said Kerry.

“What happened yesterday is outrageous,” said 9/11 widow Terry Strada in a statement issued yesterday. “The fact that Secretary Kerry would lead off his public remarks not by talking about ISIS or Iraq, but instead by assuring the Kingdom of Saudi Arabia that he would work to destroy the 9/11 bill, speaks volumes and is very painful for all September 11th families,” continued Strada, who helped lead the effort to pass the Justice Against Sponsors of Terrorism Act (JASTA).

Dishonest Arguments

The Obama administration and Saudi monarchy want us to believe two things:

JASTA represents a major departure from the previous U.S. approach to sovereign immunity.

U.S. military service members will face suits in foreign courts as other nations reciprocate with similar adjustments to their own laws.

Bolstered by a multi-million dollar effort coordinated among Saudi Arabia’s armada of lobbying and public relations firms, these arguments are sadly working wonders on credulous pundits and editorial boards—but they’re flatly dishonest.

First, JASTA represents a very narrow adjustment to the Foreign Sovereign Immunities Act (FSIA)—one that only addresses state sponsorship of terrorism. What’s more, prior to JASTA, the FSIA already provided an exception that allowed U.S. citizens to sue foreign state sponsors of terror. That exception was enacted in 1996 without sparking the disproportionate global retaliation that Kerry says will result from JASTA.

Further, JASTA only allows plaintiffs to sue foreign governments—not individual officials or military service members—and only for acts of terrorism, specifically excluding acts of war. How does Kerry propose “fixing” a law that already protects U.S. servicemen and women from reciprocity?

What’s Really at Stake

The principal effect of JASTA is to now allow plaintiffs to sue foreign governments:

For actions those governments take abroad in aiding terrorism on U.S. soil. Before JASTA, a government that handed a briefcase full of cash to a terrorist in New York could be sued, but if that same act happened in Montreal, it enjoyed immunity.

Before JASTA, a government that handed a briefcase full of cash to a terrorist in New York could be sued, but if that same act happened in Montreal, it enjoyed immunity. That are not on the State Department’s list of official state sponsors of terror. The Secretary of State unilaterally decides who makes the list; today, it’s Iran, Sudan and Syria. [Nov 3 correction: Please note that, even before JASTA, State designation as a sponsor of terror was not a prerequisite for suits relating to injuries that occur on U.S. soil.]

It’s that second attribute that represents JASTA’s real threat—not to American soldiers, marines and airmen, but to an abused executive branch monopoly on declaring which countries are sponsoring terrorism. Rather than providing an honest catalogue of real-world villainy, the American government uses the terror list as a blunt force weapon to economically and diplomatically isolate selected countries that defy it.

Cuba was on the list until the Obama administration decided to abandon decades of counterproductive isolation of the country; one day it’s a menacing fomenter of terror, the next it’s not. Meanwhile, Saudi Arabia is absent from the list, despite 28 pages of damning details illustrating a variety of Saudi government links to the 9/11 hijackers and former Secretary of State Hillary Clinton’s declaration in a leaked 2014 email that the kingdom was “providing clandestine financial and logistical support to ISIL.”

An exchange at a July House judiciary committee hearing on JASTA between State Department legal advisor Brian Egan and Tennessee Congressman Steve Cohen summed up the situation nicely.

Egan: Under the existing terrorism exception, cases are allowed against countries that are designated state sponsors of terrorism…The existing exception was crafted between Congress and the executive branch to allow for a decision and evidence to be looked at by the executive branch as to whether the relevant government has repeatedly provided support for acts of international terrorism. We think that’s an important part of the process and one that would change with this law. Rep. Cohen: Mr. Egan, Saudi Arabia is not on the list, right? Egan: That’s correct, sir. Rep. Cohen: And if we change this law and they’re subject to liability, might we find that they should have been?

In a forgivable breach of decorum, 9/11 widows and widowers in attendance applauded.

McGlinchey is the founder and director of 28Pages.org and principal at Liberty Messaging. Follow him on Twitter: @LibertyMcG.

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The name that shall not be uttered: "Saudi Arabia" absent from media coverage of US strikes in Yemen @adamjohnsonNYC https://t.co/0dKBfP9Zz0 — 28Pages.org (@28Pages) October 16, 2016