Those living in glass houses shouldn’t throw stones

In the movie, Bridge of Spies (based on a true story), Tom Hanks is a lawyer for a convicted communist spy who tells the judge that his client should not be put to death. When the judge, who was clearly of a different mind, asks why he should spare a traitor, Hanks responds, “as insurance” in the event any Americans are captured. Spoiler alert: you may not want to read the last paragraph of this column.

Common sense, some may say, but often not so common, especially when emotion or political expediency dictate a course of action. Indeed, it appears to be in short supply as the controversial Justice Against Sponsors of Terrorism Act (JASTA) introduced six years ago with the laudable goal of enabling 9/11 victims to pursue justice, works its way through Congress. The bill made international headlines last month when The New York Times reported that Saudi Arabia threatened to unload hundreds of billions in assets held in the US if the bill passes. President Barack Obama has threatened to veto the bill, which enjoys bi-partisan support, as he should.

Victims have long argued that Saudi Arabia and other entities, including banks and charities, aided the perpetrators. A number of federal courts have thrown out attempts at extending liability to the Saudis. Various district courts (In re Terrorist Attacks I and II) have interpreted the existing matrix of laws based on the Foreign Sovereign Immunities Act (FSIA), the Anti-Terrorism Act and international law to dismiss the claims. Though the Saudis remain out of reach, a round of appeals and other legal manoeuvring have now ensured that the FSIA is now interpreted to ensure that plaintiffs can sue a foreign sovereign for terrorism-related conduct even if the sovereign is not designated a “state sponsor of terrorism” by Congress provided that one of the other exceptions apply (see below). The one major problem that remains for the 9/11 plaintiffs to overcome is the requirement that the “entire tort” must have taken place within the US. The Anti-Terrorism Act has also gotten in the way of plaintiffs who have sought to go after private entities alleged to have played a role. The courts have interpreted the Act to insist on evidence of intentional misconduct and have rejected the theory of secondary liability (lower threshold) advocated by plaintiff’s counsel.

JASTA is intended as a quick fix to overrule these nuanced decisions by the courts. In essence, this is akin to moving the goalposts in the middle of the game. It is, of course, within Congress’s powers to change laws it enacted in the first place, but doing so on emotional grounds without thoroughly canvasing the implications should raise red flags. It is an undisputed principle of customary international law that a foreign sovereign is immune from the courts of another sovereign. Foreign sovereign immunity has a long pedigree in the common law, civil law and even Islamic law traditions. Virtually every nation abides by it as a matter of self-protection, comity and reciprocity. In fact, the US Supreme Court formally acknowledged the principle in an 1812 decision. Over time, as a result of globalisation, the nature of modern commerce and the increasing acceptance of human rights, most nations of the world have moved from absolute immunity to a more restrictive approach.

Limited immunity is now the global norm. Consistent with this trend, the FSIA itself was enacted in 1976 to limit the immunity granted to foreign sovereigns and their agencies. The Act sets out nine exceptions when the sovereign and its agencies will not be immune, including commercial activity, waiver, expropriation, property in the US, tort injury occurring in the US, etc. In fact, the exception of “state sponsors of terrorism” was used to uphold a multi-billion dollar US judgment against Iran, which many have argued is contrary to international law.

On the surface, it seems like a simple question of fairness. Indeed, who in their right mind, would oppose just compensation for victims and that too from a leading human rights violator. The problem is that the JASTA has far-reaching and unintended consequences. It undermines a core principle of international law, interferes with foreign relations (beyond bilateral political and economic relations with Saudi Arabia), potentially exposes Americans to greater risk, and even subverts notions of due process (creating open-ended liability for secondary actors who may not even be aware of what they did wrong). As former US Assistant Attorney General and Special Counsel to the Department of Defence Jack Goldsmith and Duke University Professor Curtis Bradley argue in The New York Times: “If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad.” Indeed, not surprisingly, as pointed out by John Bellinger, former legal adviser to the National Security Council, Iran and Cuba have already passed legislation removing US sovereign immunity.

“I know, of course, that Google, Amazon, and Micosoft are all tools and agents of the United States government, don’t you?” asks former UN Ambassador John Bolton in the George W Bush administration. “So by removing sovereign immunity,” the lawyer noted, it “puts America far more at risk form this kind of action than Saudi Arabia is.” Not to mention, what of the exposure of his former bosses and even American soldiers.

Politicised litigation is a double-edged sword. Indeed, one person’s freedom fighter can be deemed another’s terrorist behind closed doors. It would be wise for American legislators to briefly suppress their emotions and put on their common sense caps for a moment. They may realise that no country benefits more from foreign sovereign immunity than the US. And the movie? Well, as he foresaw, the CIA later enlists Hanks to help negotiate a prisoner exchange where two captured Americans are traded for his client, who was spared from death by the quick-witted judge.

Published in The Express Tribune, May 7th, 2016.