When US Congress chases votes and not the law

When read broadly, the legislation will generate future unforeseen applications of the so called 9/11 law.

Originally published in Al Jazeera In Depth 02 Oct 2016 12:48 GMT |

The United States Congress’ historic vote to defy the president’s veto, thereby passing into law the Justice Against Sponsors of Terrorism Act (JASTA), may spark new hope for victims of state violence in general.

By an overwhelming margin in both houses of the legislature, American senators and congressional representatives have defied Barack Obama, while playing to the public mood,in creating legislation that for the first time permits civil lawsuits in US trial courts to proceed against Saudi government officials, by the families of the victims of the September 11 attacks, as well as property owners.

While tailored narrowly, the broader meaning may have future applications to various struggles, including the fight for Palestinian justice.

Before now, foreign governments, their employees and agents deemed to be liable in some capacity – even an indirect one – for the deaths of Americans or the destruction of American property avoided any lawsuits by invoking the concept of “sovereign immunity”.

Blanket protection

Federal courts here simply refused such cases, rejecting them on the basis of a blanket protection for governmental actions by foreign powers.

In practice, this stripped the courts of jurisdiction over damage suits by citizens, and mostly established a “balance of litigation” whereby foreign governments reciprocally denied their citizens the right to sue the United States in their home courts.

Conflicts between nations were left to the diplomats, without injured parties messing up the picture. For 15 years, 9/11 victims’ families – emboldened by the many striking connections, real and postulated, between the al-Qaeda hijackers and Saudi officials – have banged up against sovereign immunity, as an impassable barrier to getting what they perceived as a fair hearing for their damage claims.

“The new legislation … apparently strips the Saudis, and perhaps other foreign powers, of sovereign immunity in cases where terrorism has occurred in the United States, and can be tied to an overseas governmental actor.”

I experienced first-hand the barrier of sovereign immunity in ground-breaking litigation I filed in a US court in 2002, seeking damages for a class of Palestinian-Americans injured, kidnapped or killed, or who lost property, in Israeli terror attacks against civilians in the occupied territories and Lebanon in the preceding decades.

On behalf of these US citizens, we used elements of the Alien Torts Claims Act, anti-piracy statutes and various human rights conventions to sue Israel and the United States, as well as arms manufacturers.

Some of our plaintiffs had lost their homes, some lost internal organs and some their lives. Ultimately, all the defendants in the case were ruled protected by sovereign or qualified immunity, and the case did not proceed much further then past preliminary stages.

The new legislation – sharply opposed by Obama and the diplomatic establishment, which fears an onslaught of retaliatory suits against the United States – apparently strips the Saudis, and perhaps other foreign powers, of sovereign immunity in cases where terrorism has occurred in the United States, and can be tied to an overseas governmental actor.

Yet many aspects of this new legal position remain to be understood, raising interesting questions.

Americans seeking damages

Because the Equal Protection clause of the US constitution extends rights equally to all citizens, we can expect many other attempts by Americans seeking damages against foreign powers to invoke the new law in its fullest legislative intent, even though it was written specifically to aid the 9-11 families.

How trial judges handle those cases will require close examination, case by case, on how “terrorism” is defined, and how one defines “United States territory”.

For example, if “terrorism” can be taken to mean the deliberate use of violence by state or non-state actors against civilian, non-combatants with the intent of causing death or injury or to affect a government policy, then Israel’s periodic violent onslaughts against population centres in Gaza and the West Bank which include US citizens certainly fits the definition.

Yet this violence would still be protected in US courts by immunity, as happening outside the US.

Yet conceivably, unprotected foreign state violence against a US citizen might occur in cases where US territory were defined by a trial judge as extending to embassies and offices, customs desks at foreign airports, US airline flights, military bases overseas, and other potential “gray areas” where US legal authority attaches.

One can imagine, say, a Pakistani-American shot in the eye with a rubber bullet while at the US consulate in Karachi to pick up a new passport, as government troops fire deliberately at peaceful demonstrators outside the gates – such a plaintiff in a US court would clearly want to invoke the new JASTA advantage and try her luck with the judge.

Limited jurisdiction

If enough such cases made their way through US trial courts, it is conceivable that the legislative intent of the Act – to give US citizens their day in court, to make their case for recovering damages against a foreign power that has used violence against US citizens on liberally-defined “US ground” – might be judicially construed to grant limited jurisdiction to cases broadly interpreted as within the spirit of the law.

For example, if US government development funds are used to build a medical centre for Palestinians in a West Bank town and staffed and operated exclusively by US citizens, including Palestinians, and in the course of an Israeli air raid destroying the centre, a US citizen is killed – would that citizen’s family have a viable claim against Israel under a broad application of the intent of JASTA in a US Court?

While it is diverting, from a lawyer’s perspective, to imagine scenarios in which the benefits of JASTA help more people than simply those 9/11 families desirous of a Saudi settlement, it is very unclear just how this new law will deploy over time.

The Obama administration has vigorously opposed this legislation for this very reason, and for the even greater danger it poses in exposing US military, diplomatic and civilian personnel to reciprocal lawsuits in foreign courts by aggrieved parties overseas.

While the JASTA law does not extend justice to all victims of state violence against civilians, it points the way towards a future judicial setting in which such violence – be it committed by the US, or Israel, or any totalitarian state – may one day be held to account.

Stanley L Cohen is a lawyer and human rights activist who has done extensive work in the Middle East and Africa.

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