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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 [1]” 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 [2] for years [3], 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 [4]”—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 [5] 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.

11 Comments (Open | Close)

11 Comments To "Why Terror Victims Should Sue Foreign Governments"

#1 Comment By William Dalton On February 22, 2017 @ 11:42 pm

The problem is not with suing foreign governments for sponsoring acts of terrorism. The problem is in suing foreign governments in our courts under our laws. Neither foreign governments, nor their citizens who act under their laws, are responsible for their actions under our laws, nor in our courts. To impose on them that obligation only invites other countries to make similar impositions upon our government and our citizens.

And the day will come when they will have the strength to enforce their laws against us. That is the day we will cease to be a free, self-governing nation.

#2 Comment By Fran Macadam On February 23, 2017 @ 12:12 am

Sauce for the goose is sauce for the gander. As the President asked, “You think we’re innocent?” There’s no moral reason that those innocents similarly murdered on the receiving end of drone strikes ought not also be able to sue the United States government. Ah, but there lies… the Exceptional Nation, exempt from the rules imposed upon everyone else.

#3 Comment By Kid Charlemagne On February 23, 2017 @ 12:53 am

And when persons from Pakistan or Yemen or Syria bring suit against persons here for what they perceive to be US terrorism? Won’t we just resort to our might makes us right and you can’t do anything about us terrorizing you? This will only have the effect of deepening resentment, no?
Final question – Was this piece really meant to be taken seriously?

#4 Comment By Crew On February 23, 2017 @ 1:30 am

“We have identified the problem, but now we must organize to do something about it. “

No. “We” haven’t identified the problem. The problem is that we let ourselves get dragged into the Middle East at the same time that Western governments started actively encouraging mass immigration from various Third World hellholes.

If they weren’t here, and if we weren’t there, “radical Islam” would be a phrase we occasionally heard on news reports about the eternal Israel/Palestine mess.

There’s no need to fight or even try to understand “radical Islam” because we can starve it to death by getting out of the Middle East, expelling radical Islamists, and minding our own goddamn business.

#5 Comment By William Burns On February 23, 2017 @ 6:20 am

People aren’t worried that America will sue them. People are worried that America will bomb them.

#6 Comment By SDS On February 23, 2017 @ 3:40 pm

What “Crew” said….. especially-
“minding our own goddamn business”

#7 Comment By Joao Alfaiate On February 23, 2017 @ 8:51 pm

Why is it that the terrorists and the governments that get sued in US courts all happen to be enemies of the zionist enterprise? Gee, I guess that’s accidental. Seems to me the nations and leadership that ought to be in the dock are those that have repeatedly attacked weak and defenseless people in Gaza and the Lebanon and those that have destroyed the countries of Iraq, Libya and Syria.

#8 Comment By Centralist On February 24, 2017 @ 8:47 am

Does that mean people hit by accident by drones can sue us?

#9 Comment By Seeking Truth On February 25, 2017 @ 4:51 am

The term “American Exceptionalism” has started to be viewed in the rest of the world as “America above laws and accountability.” Rules of war only apply to others but not to us. We can drop a bomb on a wedding in Afghanistan or Pakistan that kills dozens of innocents and get away by simply expressing regrets about the “collateral damage” with little or no news coverage. Until we start respecting all human lives as sacred and, yes, start minding our own business we will continue to face the threat posed by “radical Islam” or some other “radical …ism” that manifests itself because of our misguided policies that cater to narrow political interests of certain ethnic and religious groups in the U.S.

#10 Comment By Andrew Smethers On February 25, 2017 @ 7:43 pm

the sheer effrontery of this proposal is breathtaking. What makes this idiot (and I do not use that term lightly) think the USA can pass laws that have jurisdiction over other nations and their citizens? He obviously has no idea about how sovereign laws work? Perhaps he should pay attention to how our friends and neighbours, Mexico, respond to the idea that we can deport non-Mexican nationals over their border based on a US law that we passed with out consulting them. This sort of arrogance gets up even our closest allies noses.

#11 Comment By Vow Pow On February 26, 2017 @ 4:28 pm

You got to be cautious when you advocate use of law as a possible solution to political upheavals that result in consequential and collateral damages to the very idea of a nation state. In “Separatism in North East India: Role of Religion, Language and Script”, Dr. Kunal Ghosh and Vikas Kumar write “In India, the demands of tribal self assertion and Separatist struggles in the North East are fuelled by the demands of self assertion and autonomy. This is what appears on the surface. But there is also a hidden religious agenda: Baptist Christianity.” The Baptists of Nagaland have had long association with the ultra conservative Southern Baptist Church here in the USA.

So should hundreds of thousands of Indians in India’s North East who were killed over the last 100 years due to covert abatement policies advanced by Southern Baptist Church, be allowed to sue the US State which has actively used aggressive evangelization as an instrument of US State policy?

Former Sen. Gordon Smith (R-Ore.) is on record telling Mormon church leaders that he had a higher purpose when he voted in favor of the war in Iraq back in 2002. Smith said “I know and have been a critic of the Iraq war, but I also admit to you that I voted for it because I felt the Lord’s hand in it, I hope it works out, but I can promise you this: You’ll never send missionaries to the Arab street until the rule of law exists in Arabia, and it has taken root in Iraq. And ultimately, if that succeeds, there will be an opportunity to begin building the church in the Middle East, which is a deeply troubled place.” (source: [6])

This is an extra ordinary admission by someone who considers himself to be duty bound to spread the Lord at the altar of human sacrifice. So should the Iraqis be allowed to sue US State?