JASTA, Pinochet and Kissinger

Earlier this week, the US Congress overturned President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Both houses of Congress had passed JASTA unanimously and only former Senate Majority Leader Harry Reid (who is retiring and not running for reelection) voted to sustain the veto. So why did President Obama veto the overwhelmingly popular JASTA and why was his veto the appropriate response to the bill.

The vote on JASTA is inextricably tied to election year politics and not to American Founding Principles. Already there is cynical talk of the lame duck congress revoking or altering JASTA after the election since it is clearly against American national interests.

So what is, exactly, JASTA? The US congress summarizes the bill as follows:

Justice Against Sponsors of Terrorism Act

This bill amends the federal judicial code to narrow the scope of foreign sovereign immunity by authorizing U.S. courts to hear cases involving claims against a foreign state for injuries, death, or damages that occur inside the United States as a result of a tort, including an act of terrorism, committed anywhere by a foreign state or official.

It amends the federal criminal code to permit civil claims against a foreign state or official for injuries, death, or damages from an act of international terrorism. Additionally, the bill authorizes federal courts to exercise personal jurisdiction over and impose liability on a person who commits, or aids, abets, or conspires to commit, an act of international terrorism against a U.S. national.

The intent of the bill is to allow survivors of 9/11 and the relatives of those killed to sue the government of Saudi Arabia and its officials for the harm caused in the attack. Saudi responsibility has not been proven but 15 of the terrorists were Saudi. And the Saudi government has promoted an ultra-strict version of Islam (called Wahhabism) and set up religious schools (madrassas) to teach Wahhabism all over the world. It is also true that the Saudi government supported Saudi students abroad with over 200,000 scholarships so it is not unlikely that the terrorists received some form of funding from the Saudi government under the guise of being students. But all this is a long way from proving culpability of the Saudi government.

So what does JASTA have to do with Augusto Pinochet, the late dictator of Chile? In 1998, Spanish judge Baltazar Garzón indicted Pinochet on human rights violations committed in Chile during the Pinochet dictatorship. He was arrested during a trip to London and held for a year and a half before returning to Chile. The same Spanish judge tried to cross-examine former Secretary of State Henry Kissinger on Operation Condor, which was part of the indictment against Pinochet. Garzón was attempting to invoke universal jurisdiction whereby governments or international organizations can claim jurisdiction over an accused person regardless of where the alleged crime was committed.

JASTA is intended to modify the Foreign Sovereign Immunities Act (1976) that was used as a defense by Saudi Arabia in a previous lawsuit. So why is this so wrong? Clearly the 9/11 victims have suffered great harm. Under US law (based on the American Social contract), they would have redress if an individual or a corporation committed such an act. Why should foreign governments and their agents be immune?

But there is no global social contract. There is no consensus among the nations as to what would make up such a social contract among all the countries of the world. The United Nations goes through the motions of being a deliberative body but it has no true authority. Nations routinely ignore UN resolutions with impunity. The UN Human Rights Commission includes human rights abusers such as China, Cuba, Russia, Saudi Arabia and Venezuela. The members of International Court of Justice (also known as the World Court) include China, Russia and the failed state of Somalia. The United States has refused to accept the jurisdiction of the World Court, as it would be a violation of our sovereign immunity. Without a global social contract there can be no global rule of law.

JASTA undermines the US stance on sovereign immunity and endangers US interests and its officials around the world. It is another attempt to do the “right” thing without thinking about the principles that have made our nations the greatest on earth. JASTA is not based on principle but on emotion. The pain of the 9/11 plaintiffs is real but JASTA is cheap electioneering that will have real consequences in the future.

The principled action would have been for the Bush and/or Obama administration to take Saudi Arabia to task for its role in undermining the world order and fostering terrorism. Its citizens (including members of the royal family) transfer billions of dollars to terrorist organizations and the Saudi supported madrassas are training the next generation of suicide bombers. But principles were trumped by realpolitik and our traditional dependence on Mideast oil. Our diplomats and soldiers will pay the price for this ill-conceived, “what works” piece of legislation.