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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November 8, 2016 Offers No Relief For Palestine

STANLEY L. COHEN New York, 9 September 2016

As Hillary Clinton approaches the final weeks of her climb to the apex of American public life and power, the breadth and scope of her many years operating at the highest levels of our ideological system cannot be denied. Unlike her clownish, “reality-television”opponent—who has never served in government, and on his best days, appears to possess less maturity and intelligence than a three-year old child—Ms. Clinton, the former Secretary of State and U.S. Senator, has an ample record of positions, official acts and personal opinions, for better or worse. Trump’s autocratic personal style and retro “strong-man” orientation—flouting his deep ignorance on any topic, and avowed intention to “bomb to hell” every problem—suggests the real estate blowhard will be a great friend to Israeli militarism and the ever-expanding occupation of Palestine. Yet, in fact, keen observers with more memory than perhaps the current Selfie Age requires, know well that it is Ms. Clinton who has proven herself for over two decades to be among the most hawkish, pro-Israel figures in modern official US history.

Truly, have the Palestinians ever faced a worse pair of prospects in the American electoral season? A psychopathic, New York real estate narcissist vs. a hardline, party Zionist: whoever wins (and anything can happen in this unlikely election), we know it won’t be good for Palestine.

The ironies run deep with the Democratic candidate. Ms. Clinton holds the unprecedented distinction of being the first major party nominee for U.S. president, man or woman, ever to have actually visited the Gaza Strip and the occupied West Bank—a trip she made at her husband’s side in the final weeks of 1998, when President Bill Clinton faced impeachment at home over his marital infidelities. Together, they attended the ribbon-cutting on the new Gaza airport, observed a signing of a new Palestine National Charter, and met frantically to shore up the Wye River Accords among its signatories, signed earlier that fall. Ms. Clinton’s meeting and embrace of Suha Arafat, of course, became the stuff of New York City tabloid newspaper legend, with the New York Post and the Daily News screaming in Zionist unison as if the First Lady had, by touching a Muslim woman, given herself and the White House ideological leprosy.

I recall a pleasant day, months after her visit, walking around the new $83 million airport in the summer of 1999, with local Rafah friends—not a single commercial flight had been permitted, and the complex stood shimmering and empty in the blazing midday heat, almost a mirage. The paint on the walls still smelled new, and for kicks, we rode fast in a civil defense jeep down one of the empty runways, past the control tower and the main terminal. The next year, the whole place would be blown to bits by Israeli warplanes, the tower a smoking ruin, the runways full of bomb craters. The Clintons were long-gone by then, of course, and no one in the U.S. government raised a bit of objection to what was both the symbolic and the practical demolition of Palestinian’s aspirations to fly free of the occupation—after all, it was Gulf State and German money that built the place, who cared if the Israelis wanted it destroyed?

But I remember just as well, that very same year, how Ms. Clinton traveled again to Israel in her effort to win the US senate seat for New York held by Daniel Moynihan—himself a staunch protector of Zionism. It needs explaining, for foreign readers, that Israel is like the “sixth borough” of New York City—a required campaign stop for any politician hoping to win election in this town, and every congressman makes a necessary pilgrimage there to genuflect before the power of the Israel lobby, and to assure New Yorkers that they love Israel more than the next candidate. It is a sloppy mess—US politicians competing for AIPAC help in getting elected, kneeling to kiss the ring of a foreign power every two years—but an enduring, illustrative spectacle of our ideological truth.

Yet that summer, Hillary Clinton out-did any other Democratic politician in her craven fawning, when she gratuitously included the Zionist formula for subjugating Jerusalem in an official letter to an Orthodox Jewish union, writing that she believed the city to be “the eternal and indivisible capital” of Israel, and promising to move the U.S. embassy there from Tel Aviv. The verbal formula, of course, has long been a shibboleth of hard-core Zionist plans, and her adoption of it was deliberate and not accidental. A few years prior, Republican Zionists in the Congress passed a bill (the Jerusalem Embassy Act of 1995) ordering President Clinton to move the embassy, or face consequences—however, the language of the law contained a presidential waiver, and Clinton invoked his waiver to get out of complying, preserving the status quo. This grotesque pantomime has continued every year for the last twenty years, as Congress renews the law, and each president opts out on the implementation, and the embassy remains in Tel Aviv.

At the time, many of us in the anti-Zionist cause wondered if the First Lady had been naïve, or manipulated, in her clumsy ploy to pick up AIPAC support—after all, her adoption of the outrageous language of Israeli conquest and annexation stood in sharp contrast to both her party and her husband’s official position (not to mention international law), and contradicted the U.S. State Department’s policy. If she did not understand the dangerous implications of the language, then her competency was in question; if she did, then her politics represented a shift for the party. There was simply no version of the fabled “two-state solution” that did not include half of Jerusalem as the capital of Palestine. Thus, any politician advocating the language of the Zionists on an “indivisible” Jerusalem essentially says, “the Palestinians don’t matter,” and their national aspirations will not be honored. As it happened, even George W. Bush’s White House kept invoking the waiver on the renewed law, and Senator Clinton never had to account for her earlier campaign trail Zionism.

But from her years toiling in the White House, the Senate, and the State Department— a rigorous education unmatched by few in our political history—we might wonder, without irony, if Ms. Clinton has undergone any transformation since that summer, and where that process has brought her today.

Sadly, her years of experience have made her more canny about the workings of power, but do not appear to have changed her mind—she remains the greatest Israel hawk on the Democrat side. While she backed away from the language of the embassy move as Secretary of State—an idea in contravention of State Department policy—her Zionist ethos has remained strong. As a senator, she has visited the illegal wall destroying Palestinian life, and praised it for its guarantee of Israeli security; she has at times visited Jerusalem, and called it “Israel;” and as a presidential candidate, her campaign took up the hated formula again, extolling Israel’s “right” to an “undivided Jerusalem as its capital” in a position paper (“Standing with Israel Against Terrorism”) available on the Hillary website as late as 2010, but now apparently scrubbed away.

Just as alarming for Palestinians is the candidate’s language today, on her official campaign site. A quick perusal of her current Israel page, “Hillary Clinton and Israel: a 30-Year Record of Friendship, Leadership and Strength,” gives the general drift of her Zionism—record-breaking military budget increases for the Israeli war-making machine; opposing the Goldstone Report; criticizing the U.N. for its bias against Israel; intelligence sharing initiatives with the Mossad; and so on. In her promises for the future, when she is president, she vows to “defend Israel on the world stage,” by opposing “anti-Israel bias” in international forums (by this, we understand, the International Criminal Court and human rights venues); and to “stand up against” the BDS movement, while cutting off efforts to recognize Palestinian statehood.

The past years of Democratic rule have not been kind to the Palestinians—while President Obama’s pronounced personal dislike for the racist Netanyahu has at least dialed-back the most egregious Israelophilia, the fact remains that this president has presided over the biggest run-up in Israeli military aid in American history. Despite what Likud hawks think about Obama, he has been their best friend ever, accounting strictly by the dollar. And a Hillary Clinton presidency promises more of the same—but with the added concern that in her past record, she has shown a shocking disregard for, and fundamental disinterest in the Palestinians, their hopes and aspirations. Ms. Clinton will not—as Obama did upon election—be visiting any Arab capital with a proffered fig leaf. If, as Shakespeare warns us, “What’s past is prologue,” Ms. Clinton can be expected as president to mount the ramparts of Fortress Israel, and vigorously wave the flag—perhaps more aggressively than Bush or Reagan, or any president before her, portending grave trouble ahead for Palestine.

hill-bibi-abbas

“Partners in Crime”