You’d think that after three and a half decades’ working in Pergamum-on-the-Potomac, not to mention over 17 years’ service with the U.S. Senate, one’s capacity to be scandalized would have been exhausted. But even this jaded observer can’t help being a bit shocked by the sheer sleaziness of the Obama Administration, Congressional leaders of both parties, lobbyists for Saudi Arabia, and the Wahhabist head-choppers who virtually own the three aforementioned categories as they prepare to make sure that American families of those killed or injured on 9/11 with the complicity of Riyadh are denied their day in court.
A clue should have been the ease with which a bill as controversial as the “Justice Against Sponsors of Terrorism Act” (JASTA; S. 2040) became law. There was no floor fight or roll call vote in either the House or the Senate, just a voice vote. There was no go-to-the-mat mobilization by the White House, Pentagon, State Department, or the Saudis’ horde of Gucci-shod fixers to avert the overwhelming override of Barack Obama’s veto.
We soon saw why. Even before the override vote took place the media began cranking out stories, seemingly written by the same person, that Congress was experiencing “buyer’s remorse.” (On the GOP side, the list of lawmakers suddenly pained by JASTA’s supposed flaws overlaps strikingly with those rushing to throw Donald Trump under the bus for allegations of lewdness, but that’s another story.) By the time JASTA was enrolled as Public Law No: 114-222 a bill to “correct” it reportedly was already in the works, with Congressional, Obama Administration, and Saudi participants up to their elbows tinkering with substitute language to be quietly passed during the Lame Duck session, after the November election.
This activity began belatedly, we are supposed to believe, when JASTA was just about to become law because it was only then that legislators experienced pangs of anxiety about the possible boomerang impact on the United States of the “precedent” created by an exception to the doctrine of sovereign immunity. Hogwash. Those concerns, overblown if not specious (as noted below), were well-known beforehand.
This was not a case of buyer’s remorse. This was scripted jiu-jitsu to make a big show of standing up for Americans before an election and then quietly do the Saudis’ dirty work once safely past those pesky voters.
To his credit, Donald Trump came out firmly for JASTA and against the Obama veto, despite advice to the contrary from some of the more establishment Republicans lately to board the Trump Train. Hillary Clinton says she would have signed JASTA into law, which given her reputation for honesty can be taken about as seriously as her stated opposition to the Trans-Pacific Partnership, which her longtime crony and felons’ suffrage champion Virginia governor Terry McAuliffe says will be quickly reversed after November 8. (Conveniently absent from the floor of The World’s Greatest Deliberative Body on the day of the JASTA veto override vote was McAuliffe’s fellow Virginian and Hillary’s running mate, Senator Tim Kaine.)
Exactly how JASTA would be
reformed gutted to meet Riyadh’s imperious favor is not yet clear and is less relevant than the intended result: the Saudis must not be subjected to legal accountability or even to further embarrassment or inconvenience. While there are a number of technical options available, the most likely one is simply to insert a presidential waiver clause. This would allow the White House to nullify the legal recourse of aggrieved American families (even retroactively shutting down those filing lawsuits immediately after JASTA became law) just by having the President formally attest to what anyone familiar with the Saudis’ domestic and international behavior knows to be damnable lies.
“Congress might require the President to determine that A) Saudi Arabia continues to be a reliable ally of the United States and partner in combating international terrorism; and B) Saudi Arabia is taking strong actions to prevent support inside and outside Saudi Arabia for religious extremism.”
And they say Vaudeville is dead! What the USSR was to communism Saudi Arabia is to “international terrorism” and “religious extremism” (gee, which religion?). But does anyone doubt Barack Hussein Obama would rush to certify the truth of these rank fictions?
It should be noted that JASTA does not single out or even mention the Saudis by name. On its face, the law pierces the veil of sovereign immunity for any government that is implicated in an “act of international terrorism in the United States” on or after September 11, 2001. The fact that the Saudis and their hirelings and fellow-travelers both in and out of government are about the only ones trying to nullify JASTA approaches an admission of guilt.
The supposed need to fix JASTA reflects in part Saudi threats of financial retaliation, such as dumping U.S. Treasuries or switching their massive purchases of American-made weapons to competitors. But the big hammer is the claim that the JASTA “precedent” would open up the United States government to myriad foreign lawsuits, for example from the families of people killed by Obama’s drone strikes. Leaving aside the question of whether the U.S. should be so blasé about our killing and maiming people in other countries with impunity, the argument of precedential danger is exaggerated:
- First, the United States already has statutorily waived sovereign immunity on a limited basis with respect to countries we don’t like, notably Iran, Iraq (under Saddam Hussein), North Korea, and Cuba, even for actions that took place outside the U.S., which don’t fall under JASTA In general, our rule has been that if a country is on our “bad guys” list—and specifically, it they are officially designated a “state sponsor of terrorism”—their sovereign immunity can be abridged however it suits us. Evidently, JASTA opponents don’t think a little thing like official Saudi complicity in 9/11, which American plaintiffs would bear the burden of proving, should put Riyadh in that category.
- Second, some of the suggestions made that the U.S. could be subject to claims from Iraqis for the 2003 invasion and subsequent occupation, Palestinians for U.S. military assistance to Israel, Syrians for U.S. arming of terrorists in that country (which of course Obama is doing), and Yemenis for helping the Saudis commit war crimes on a massive scale in that country (which he is also doing), and others are not patterned directly on JASTA, which specifically applies only to international terrorism as defined in U.S. law but “does not include any act of war,” also as defined in U.S. law.
The bald fact is, with or without the JASTA “precedent,” other countries have always had the ability to pass domestic legislation allowing their citizens to sue the U.S. government in their courts for anything they want. They haven’t done so, and are unlikely to do so even if JASTA stands in its current form, not because of some American precedent or absence thereof but because such laws wouldn’t do them much good and could do them a lot of harm.
This is because of the huge disparity between American financial power, legal reach, and military might—and everyone else’s. If any foreign country’s government gets sued in American courts, it matters for the simple reason that we can inflict pain on them. Because international financial transactions typically are routed at some point through an American intermediary bank (and most such transactions are conducted in U.S. dollars, the world’s “reserve currency”), a judgment in U.S. federal court can be enforced by intercepting funds belonging to that government. The same mechanism was key to forcing Iran to negotiate on its nuclear program by making it almost impossible for Tehran to conduct business internationally. Ditto the at-best questionable claims of U.S. “jurisdiction” over alleged corruption in the FIFA soccer federation, Russian sports doping (but nobody else’s), non-U.S. companies doing business with regimes Washington has branded as “terrorist” (but the companies’ own governments have not), subordinating all other countries’ financial institutions to IRS regulation and potential intelligence penetration on the pretense of fighting tax evasion, and other occurrences taking place abroad but via the banking system supposedly “continuing” in the United States “constructively” (a fancy legal term meaning “not in actual fact, but let’s pretend”).
What admirers of the “lawfare” concept may applaud as the long arm of law enforcement others may decry as anti-sovereign, arrogant, imperial overreach. Either way, the fact remains that no country presently is capable of enforcing in its courts a judgment against the United States government unless Washington acquiesces. Suppose an award were made to citizens of Iraq, Yemen, or wherever under an analog to JASTA for some real or supposed misdeed by our government. How exactly would they collect on it? Seize a U.S. government-owned building? Impound a U.S. Navy ship in port? Shoot down an American drone? It’s not hard to see why those would be bad ideas.
What it all boils down to is that fixing JASTA has little or nothing to do with fear of analogous legal retaliation or even Saudi threats to take their dirty money elsewhere. Rather, it is a reflection of the fact that when given a choice between justice for American citizens and nurturing a cushy, lucrative relationship with the most despicable human rights violator on the planet with the possible exception of North Korea and the by-far biggest wellspring of global jihad terrorism, mandarins of the Washington duopoly instinctively choose the latter. The long and the short of neutering JASTA is that the Saudis demand to be given what might be called the Clinton Privilege: what is law for thee is not law for me.
There’s still time to stop this outrage. Americans can email and call their Senators and Congressman and tell them: “Hands off JASTA! It’s only two years until the next election—and we will remember!” Pay particular attention to the Senate. As Kentucky Senator Rand Paul has heroically demonstrated in holding off some nasty, unconstitutional tax treaties, it only takes one Senator to put a hold on a bill. Often that hold can’t be maintained for long, but a Lame Duck session lasts only a few weeks at most.
In overriding Obama’s veto for the first time to enact JASTA, Congress, whatever the legislators’ individual motivations, put Americans first—for a change. Now let’s see if they stick to it by rejecting any changes to JASTA.
Jim Jatras is a former U.S. diplomat and foreign policy adviser to the Senate GOP leadership. Tweet him at @JimJatras.