It is easy to understand that the United States Congress would want to stand behind the families of the people who lost their lives in the terrorist attacks of Sept. 11, 2001. But the Congress chose the wrong vehicle when it passed, over President Barack Obama’s veto, the Justice Against Sponsors of Terrorism Act (JASTA). In fact, JASTA could undermine our ability to defend our interests anywhere in the world. In their quest for justice against terrorism, the congress may be making the United States more vulnerable to it.
The principle of sovereign immunity has governed relations between states for centuries. It holds that governments cannot be sued for civil wrongs without their consent. In international relations, it preserves the right and responsibility of governments to settle disputes with other governments on behalf of their citizens. It prevents a potentially chaotic state of affairs in which individuals bring suits against governments throughout the world for any number of real or imagined wrongs.
By allowing the families to bring suit in federal court against the government of Saudi Arabia for involvement in the attacks, JASTA would gut the principle of sovereign immunity. It could also encourage other countries to bring Americans before foreign courts for carrying out their official duties and even make the U.S. government responsible for acts of private citizens. Ironically, it probably will produce neither justice nor satisfaction for the families.
The United States military, the Department of State and our intelligence agencies have people performing important duties around the world. Without sovereign immunity, other countries could prosecute them or allow their citizens to file suit against them or the U.S. government in their courts. Whether the allegations have merit or not is immaterial; what matters is that they would be subject to local courts — not just in Canada or Germany, but even potentially in places like Pakistan, Russia or Venezuela. Remember, there is no evidence that the government of Saudi Arabia was complicit in the attacks of 9/11, yet the families want to bring suit against it.
If a foreign government chooses to exercise jurisdiction over U.S. Service members, the Service members could be held in civil or criminal contempt should they refuse to appear or otherwise comply with the foreign court’s orders. This could subject the United States to monetary damages, which could lead to attempts to seize U.S. military property overseas. It would also have a chilling effect on the performance of our personnel, who would always have to be concerned about potential legal liability.
If a U.S. Service member were tried in a foreign court, it would be up to that court to decide whether classified or sensitive U.S. Government information would be required as part of the litigation process. This could force the United States to make a decision either to disclose classified or sensitive information or subject a U.S. Service member to an adverse foreign court ruling, including prison.
No nation wants this. In fact, several countries have raised their deep concerns about JASTA with the United States government, including the Gulf Cooperation Council, the European Union, the Netherlands, Turkey and Pakistan — countries where many thousands of U.S. servicemen and women are or have been present.
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The true intent of many members of Congress may be to give the families the means to extract a financial settlement out of court, which is so often the case in civil litigation. But civil litigation is a poor substitute, especially if it handcuffs and threatens our military, diplomatic and intelligence personnel overseas and makes it more difficult for us to defend the nation.
• Don Pugsly is a special forces Green Beret Sargeant Major with 87 military parachute jumps, a top Secret Security Clearance and a medi-vac in Vietnam. He was born in Des Moines, Iowa, graduated from Roosevelt High School and attended the University of Iowa.