Shutting Down The Terror Masters: Some Considerations

by PETER HUESSY September 27, 2016

Congress will consider on Wednesday whether to override the President's veto on Friday of the Justice Against State Sponsors of Terrorism bill, known as JASTA.

The objective of the bill's sponsors and the near unanimous Congressional support are both easy to understand. 

Currently state sponsors of terrorism such as Iran and Syria, and formerly North Korea and Libya, can be sued in court. Congress years ago opened that door that had previously prevented individual citizens from suing countries that carried out terrorism against Americans. If a nation is designated "a state sponsor of terrorism" by the US Department of State, that eliminated nation-state sovereign immunity in US courts.

The victims and the survivors of the 9-11 attacks know that the Taliban in Afghanistan gave sanctuary to Al Qaeda to plan the attacks. But the Taliban are not in power as a government and thus difficult to sue. 

Now the 9-11 Commission also implicated Iran and Hezbollah in the training of the hijackers. And Iran can be sued in court and has been. And has been found complicit in the 9-11 attacks. But the court judgments against Iran remain frozen. The administration won't act.

Stymied from going that route, the 9-11 victims conclude that since the hijackers themselves were Saudi nationals, members of the Royal Family or officials of the government of the Kingdom of Saudi Arabia may have been involved as well. There is some evidence of a senior Saudi national with a link to some of the hijackers but nothing dispositive, and the 9-11 Commission concluded there was no connecting evidence as well to the KSA government or Royal Family. And given that the KSA is not officially designated a state sponsor of terrorism, US law precludes the 9-11 survivors from suing for damages.

Enter JASTA. Although the bill does not specifically mention any particular country, if sued the KSA has billions in assets in the United States that could be attached in a court order. Iran, an official state sponsor of terrorism, knew that and removed virtually all its assets from the United States to preclude just such action by a US court.

This is where it gets not only complicated but dangerous. The Chief US prosecutor at the Nuremberg trials, Robert H. Jackson, said leaders of Germany had to be held accountable for their crimes and that "we judge these defendants today" on a record which "history will judge us tomorrow". He warned "to pass these defendants a poisoned chalice is to put it to our lips as well".

Unfortunately, there are many in our own country and elsewhere who believe American foreign policy and military actions constitute terrorism as well. And they are not as careful with their legal reasoning as Jackson hoped. So in order to allow our citizens to sue a foreign country in an American civil court, JASTA abrogates the principle of sovereign immunity. That means America can be sued as well. In 2013, an Iraqi women filed a class action suit-- Saleh v. Bush---against members of the George W. Bush administration for their involvement in "premeditating and carrying out" the Iraq War.

In a review of the case by the Congressional Research Service, it was explained the Obama Administration's Department of Justice moved to dismiss the Saleh v. Bush charge twice--on August 20, 2013 and another one on November 29, 2013. The Justice Department cited the Westfall Act, "claiming that the defendants were acting within their scope of employment when planning and waging the Iraq War, and therefore cannot be held individually accountable for the harm caused."

The Westfall Act, says the CRS report, "rules that harm done within the scope of employment is the responsibility of the employer. In this case the employer is the United States government, which is protected by sovereign immunity."

But some folks don't want sovereign immunity to be a barrier to suing the US government. Some see suing the US as a vehicle to bring the "powerful to justice" says Professor Chomsky of MIT, and the folks to whom he refers are American officials he thinks are war criminals. Similarly, the Iraqi National Project, headed by an Iraqi Sunni opposed to the current government, issued a statement September 25th indicating they would immediately sue the US government so "millions of Iraqis" could seek "compensation" for the "injustices, bombings and tortures" due to the Iraqi war if Congress overrode the President's veto of JASTA.

Whatever one's position on American foreign policy and military actions, the USA may be open to a cascade of lawsuits from those wishing us grave harm. Given our assets around the world, the opportunity to find various "pots of US gold" through generous court decisions will be a temptation far too difficult to ignore.

But worse, if every time the US or its allies must use military force against terrorist sponsoring states, terror groups, or armed adversaries, their actions will be called into question in court. The US and its allies will cease to have a credible security policy. We will be frozen into inaction. It will be like numerous reports from the Department of Justice that police departments around the country are discovering police on duty who are simply standing down and not taking discretionary action to prevent crime. Violent crime is now up 17 percent in the country, the largest increase nationwide in over 20 years.

Under current law, Iran was found guilty of numerous terrorist acts against the United States to the tune of $56 billion in damages. $2 billion was awarded to the victims and families of Khobar Towers. Unfortunately, fear of the impact on the nuclear agreement with Iran deterred the administration from implementing payment, even though the US Supreme Court gave it a green light.

Certainly the ability of the US government and its allies to stop enemy states from using terrorism against us may be seriously circumscribed if the courts end up deciding the legal propriety of multiple USA and allied counter terrorism actions. Terrorism by Iran, Syria, North Korea and others will then expand and our security will diminish. That is not what anyone wants. But that is what we may get.    

Peter R. Huessy is Director for Strategic Deterrent Studies at the Mitchell Institute for Aerospace Studies as well as President of Geostrategic Analysis, a defense consulting firm he founded in 1981. He is also a guest lecturer on nuclear deterrent policy at the U.S. Naval Academy and formerly Senior Fellow in National Security at the American Foreign Policy Council and JINSA.


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