JASTA and The Terrorist's Lawyers

In early 1981, Secretary of State Al Haig testified before the Senate Foreign Relations Committee that most global terrorism was being directed by the Soviet Union.

Haig was widely condemned. Many intelligence analysts dismissed the alleged Soviet connections to terrorism as total fabrications. The tenor of the times held that communists in Nicaragua and El Salvador - the Sandinistas and FMLN - were just agrarian reformers independent of Soviet control.

Today the battle against terrorism is even more intense than at the height of the Cold War. Widely accepted measures put the number of attacks in 2000 at roughly 3,500, but rising to 32,000 by 2014 causing 34,000 casualties, an 80% increase from the year before.

And thus understandably frustrated by US government inaction, families of 9-11 victims are pushing for legislation to permit civil suits against state sponsors of terrorism, and are publicly targeting Saudi Arabia. The "Justice Against Sponsors of Terrorism Act," or JASTA, passed the Senate in June by unanimous voice vote. It is now before the House.

Saudi Arabia’s Foreign Minister Adel bin Ahmed al-Jubeir objects to the bill, saying, "What (Congress is) doing is stripping the principle of sovereign immunities which would turn the world of international law into the law of the jungle."  

JASTA carves out an exemption to a 1976 law that provides nations immunity from lawsuits in US courts if a foreign country is found culpable of killing American citizens within the United States.

However worthy the objective of the bill, its passage will boomerang. Citizens of both foreign countries and the United States would be able to sue the U.S. government for alleged terrorist acts.

In an October 2009 essay, "Predator War," Jean Mayer of the New Yorker denounced America’s use of drones – comparing the use of drones to terrorism in a 2009 address to the National Defense University.

She is not alone. In Wikipedia, the entry "Terrorism" reads: "The United States of America has at various times provided support to terrorist...organizations across the world and numerous regimes that have used state terrorism as a tool of repression..."

Further complicating matters, JASTA was amended to allow the State Department to delay civil suits as long as the administration confirms they are “taking action”, including discussions to resolve issues with the targeted state -- a loophole through which a thousand terrorists can march.   

Why then pass JASTA? Our counter terrorism policies today are ineffectual and JASTA won't change that. For example, elements of Pakistan's ISI are sponsors of the Taliban, yet we provide that country with billions in foreign aid. On Iran, despite the mullahs being responsible for thousands of American casualties, we promote European investment in that nation. On Syria, we refuse to attack elements of the Assad regime. And on North Korea, we took that regime off the state sponsors of terrorism list. 

Further, one expert warns JASTA will "create a broad precedent that can be used against the United States and its allies as an excuse for reciprocal or analogous reductions in immunity even if no suit is brought against those countries in the United States."  

Once the immunity door is opened, lawsuits will come through it. A statute targeted at one country, like Saudi Arabia, would still not provide a firewall protecting the sovereign immunity of the United States and its allies. A legal scholar noted, "If another country wanted to allow suits against the United States in its courts for 'international terrorism,' a US exception aimed at a single country would be all the precedent it would need."

Though courts have concluded that international law requires that a State be accorded sovereign immunity, foreign nationals harmed by U.S. military action might not see it that way. And interest groups would be happy to sue in American civil courts to stop American military activity, including U.S. military assistance to Israel.

Peter Huessy is President and CEO of GeoStrategic Analysis. A former professor at the National Intelligence University, he now teaches nuclear deterrence strategy at the U.S. Naval Academy.