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Why Terror Victims Should Sue Foreign Governments

There is movement to water down the Justice Against Sponsors of Terrorism Act (JASTA), legislation passed last year that would allow private citizens to file lawsuits against foreign governments they allege are responsible for acts of terrorism. The most prominent example is a longstanding claim brought by families of 9/11 victims against Saudi Arabia.

The debate over JASTA has mostly involved sovereign immunities law, justice for 9/11 victims, or diplomatic protocol. Those are certainly valid concerns, but JASTA is also a baby step in the right direction.

The U.S. must move away from fighting an ideology with only military operations and traditional diplomatic tools like the State Department, which was designed for state-to-state relations. Fifteen years of playing a game of classified whack-a-mole has not secured the nation. Dismantling JASTA and simply sticking with the current strategy has a “more cowbell” ring to it. It simply is not serious.

JASTA is not the problem; the U.S. government’s efficacy is. Why take away a tool from our barren statecraft toolkit?

To be sure, the military and State Department are indispensable tools, but they are ineffective against an ideology. And as I have been saying for years, we are not organized to undermine an ideology. Absent proper tools, we grasp for the hammer. Occasionally dispatching terrorists with a Hellfire missile is indeed called for, but that is not a substitute for a policy.  Persisting in that strategy for 15 years—thousands of strikes in an unknown number of countries, shrouded in secrecy—strayed into unconstitutional territory long ago.  

Couple our lumbering, disorganized national security bureaucracy with the fact that one of our major political parties treats this ideological fight like Voldemort—“he who must not be named”—and we have a narrative of government failure.  

So democracy swooped in and gave us JASTA. Voters assessed the sorry state of affairs and petitioned Congress to step in on their behalf. Congress listened. When President Obama tried to block them, the House (348-77) and Senate (97-1) voted to hand him his first overturned veto. JASTA is a blunt instrument, but the U.S. now has a tool designed specifically for the ideological fight in which we find ourselves.  

Many of JASTA’s opponents worry about the precedent it could set, but the incentive it creates is rather simple: Worried America might sue you? Do not propagate an ideology that kills Americans. Thus JASTA is a blunt tool of persuasion that disincentivizes states from irresponsibly spreading a violent political ideology.  

In the case of 9/11, there is no indication that the Saudi government directly participated in the attacks, and the question has faced exhaustive investigation. Saudi Arabia should be supremely confident that they would win any suits brought under JASTA.  

But Brookings Institution scholar William McCants describes Saudi Arabia’s role in in the fight against radical Islam as “both the arsonists and the firefighters.” He notes that they spread “a very toxic form of Islam that draws sharp lines between a small number of true believers and everyone else, Muslim and non-Muslim.” As a result, Saudi Arabia is rightly concerned that JASTA could cause them grief, if nothing else, by creating bad PR.

McCants further points out correctly that, “they’re our partners in counterterrorism.” This is the peg on which JASTA opponents hang their hat. Saudi Arabia helps us hunt terrorists. But it is also true that the country played a significant role in midwifing plenty of them. 

And this is the yawning gap in our government’s capabilities. We are awfully good at killing terrorists, but we do not even try to squash the political ideology under whose banner they fight.  

It would be nice if JASTA opponents focused on this point rather than trying to kill off a new tool that begins to chip away at the underlying problem. Yes, JASTA can cause diplomatic heartburn, but the goal should be to make JASTA unnecessary, not toothless. Give the country the tools to protect itself and prevent fifteen years of fruitless war.  

We need a political warfare capability; we need to reform the State Department and the increasingly sclerotic national security bureaucracy, in general; we need an immigration system that not only works but—critically—that Americans trust. Most importantly, we need politicians who will tell the truth about the problem. All of those things will give the U.S. an effective strategy for defeating and preempting the regrowth of political Islam.  

Last year’s elections have created somewhat of a pregnant pause. The country finally broke the seal on speaking about the issue, but that should not end the conversation. The words “radical Islam” do not hold talismanic powers. We have identified the problem, but now we must organize to do something about it.  

Focus on that, not on diluting JASTA. JASTA opponents who do not propose something new are limiting the national security tools available to us. That strategy has and will produce predictable results. By all means, bomb ISIS harder, but doing so does not necessarily undermine the political ideology that inspires them. JASTA critics should seize on the lack of discussion about this to help make JASTA unnecessary and the country safer.

Kristofer L. Harrison is senior managing director for a macro-economic consultancy. Previously, Mr. Harrison served as an official at both the State and Defense Departments during the George W. Bush Administration.

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