Risks of Citizens Suing Foreign Governments

Well-meaning legislation would permit 9/11 families to sue Saudi Arabia for its alleged role in the terror attacks but the principle of individuals suing foreign governments is fraught with problems, says ex-CIA analyst Paul R. Pillar.

By Paul R. Pillar

The recent passage by the U.S. Senate of a bill labeled the Justice Against Sponsors of Terrorism Act elicited cheers from those wanting to see any kind of significant bipartisan action in Congress. The bill is intended to amend existing law regarding sovereign immunity to make it easier for U.S. citizens to haul foreign governments into U.S. court for involvement in the 9/11 terrorist attacks; Saudi Arabia is the unnamed but obvious target.

And as Daniel DePetris put it in his informative piece on the subject, “who wouldn’t support granting the 9/11 families a measure of justice?” But the bill, which Republican John Cornyn and Democrat Chuck Schumer pushed through the Senate by unanimous consent, raises even in its current amended and watered-down form some considerations that those giving bipartisan assent did not appear to think through carefully.

The World Trade Center's Twin Towers burning on 9/11. (Photo credit: National Park Service)

The World Trade Center’s Twin Towers burning on 9/11. (Photo credit: National Park Service)

There are sound reasons behind the concept of sovereign immunity, which is incorporated into the decades-old statutory law that would be amended. The reasons apply just as much to terrorism as to other subjects. The reasons involve the effectiveness of U.S. policy and not only conformity with customary international law.

Lawsuits against foreign governments affect foreign relations and in effect become part of the foreign policy of the country where the litigation occurs. If there is to be any chance for a foreign policy to be coherent, it must be the product of the policy-making branches of government. It cannot be the inevitably haphazard product of individual lawsuits, the occurrence of which depends on the initiative of individual complainants and the results of which depend on the facts of the individual case, the skill of individual lawyers, and the judicial philosophy of individual judges who happen to get the cases.

Grievances also typically flow in two directions. Reciprocity and revenge thus become considerations. The authors of this bill do not seem to have taken full account of what other governments may do regarding handling of their complaints, or their citizens’ complaints, against the United States.

Handling grievances against foreign governments through diplomacy rather than trying to do so unilaterally through one’s courts is the only way one’s own government can bring all available leverage to bear regarding all outstanding issues, and in so doing to pursue one’s own national objectives as effectively as possible.

Those objectives may themselves involve international terrorism. An example were the Algiers Accords that served as the instrument for resolving the Tehran hostage crisis of 1979-1981. A key provision of the agreement was that both Iran and the United States agreed to end individual litigation of each side’s claims against the other.

Regardless of what one may think of the Algiers Accords — and aspects of them still have a bad odor, including the way the Iranian regime manipulated the timing of negotiations relative to the U.S. election cycle — they got the American hostages back. Shouldn’t the freedom of those hostages, who were victims of international terrorism, have gotten at least as much consideration as hypothetical future compensation for family members of other victims of terrorism?

There always have been trade-offs between the harms levied on individual citizens by foreign countries and broader foreign policy considerations involving those same countries. Terrorism is only one possible connection between a policy of a foreign government and harm, including lethal harm, inflicted on one’s own citizens.

Pollution-friendly policies of foreign states, for example, impair the health of people in other states. And for any state with conscription, individual citizens may be made to fight and to die in a war that was some other state’s fault. Given the difficulty often encountered in collecting from a foreign government that does not recognize the jurisdiction of the court that rendered the judgment, resorting to individual litigation often is not the best way to see justice served.

The substantive issues involved in the terrorism matters at hand in the current bill are, for at least two reasons, not very judiciable. One reason is the difference in standards of evidence applied in courts and those applied to executive branch decisions. The first is more demanding than the second.

Many executive branch decisions in foreign policy involve having to make choices in the face of much uncertainty, which is much different from proving something beyond reasonable doubt in a court of law. This distinction comes up all the time in the handling of individual suspected terrorists.

It is one of the reasons, in addition to Congressional resistance, that the Obama administration has not been able to empty the detention facility at Guantanamo. There is enough information on some of the detainees to decide, as a matter of executive branch prudence, that they would be dangers if released, but not enough information or the right kind of information to serve as evidence that would assure a conviction in a court.

Prince Bandar bin Sultan, then Saudi ambassador to the United States, meeting with President George W. Bush in Crawford, Texas, on Aug. 27, 2002. (White House photo)

Prince Bandar bin Sultan, then Saudi ambassador to the United States, meeting with President George W. Bush in Crawford, Texas, on Aug. 27, 2002. (White House photo)

The other reason involving judiciability concerns the nature of the state involvement in question. Saudi Arabia’s policies and practices and specifically its use of religious ideology have for many years fostered extreme and intolerant versions of Islamism, including the violent form that manifested itself in the 9/11 attacks. Indeed, Saudi policies in this regard have had harmful effects in ways that go far beyond 9/11 or even international terrorism generally. It is proper for these matters to be a major focus of U.S. policy toward Saudi Arabia.

But the connections between Saudi policy and 9/11 are of a much more general and indirect sort than what normally makes for a tort that can be the basis of a cogent lawsuit. Notwithstanding all the malign effects of the Saudi regime’s handling of Wahhabism, no direct link has surfaced publicly between that regime and the 9/11 operation. An undesirable and counterproductive result would be for someone to try to make a lawsuit out of the matter and then, because of the insufficiency of suitable evidence, to lose the suit.

The bill that passed the Senate is thus another example of a feel-good measure that gets broad political support but that would entail significant problems if it ever were to be enacted. Underscoring this observation are two ironies and inconsistencies involving this bill.

One is that the Senate action comes not long after a decision by the U.S. Supreme Court upholding a previous act of Congress that took a matter of victims’ compensation for state-sponsored terrorism out of the hands of litigants and had the policy-making branches decide it instead.

The specific case concerned whether assets of the Iranian central bank were fair game for lawsuits seeking individual compensation for terrorism in the 1980s by Iran’s client Lebanese Hezbollah. Two of the justices dissented because the statute under consideration short-circuited pending litigation, making it look as if Congress was ordering a court how to decide a case before it. But a majority of the Supreme Court agreed with both Congress and the Obama administration that this was a proper matter for the policy-making branches to determine, regardless of any lawsuits that had already been initiated.

The other irony and inconsistency is that many of those who are supporting the Cornyn-Schumer bill’s movement into the courts of a response to international terrorism have long been proclaiming that terrorism is “war” not “crime” and have done their utmost to prevent accused terrorists from being tried in federal court. This is even though the federal judicial system has demonstrated repeatedly that it is well-suited to try fairly and to punish effectively individual accused terrorists.

Now by attempting to make states into defendants in civil suits in that same federal court system, the courts are being given a job for which they are poorly suited. States cannot be put in the dock or cross-examined, and their cases inevitably get into foreign policy issues. This combination of uses and non-uses of the courts — to put states on trial but not to put individual suspects on trial — has it all backward.

Paul R. Pillar, in his 28 years at the Central Intelligence Agency, rose to be one of the agency’s top analysts. He is now a visiting professor at Georgetown University for security studies. (This article first appeared as a blog post at The National Interest’s Web site. Reprinted with author’s permission.)

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9 comments for “Risks of Citizens Suing Foreign Governments

  1. Sally Snyder
    May 27, 2016 at 9:51 am

    Here is an explanation of Wahhabism, the Saudi version of Islam, and why it is so dangerous:

    http://viableopposition.blogspot.ca/2016/04/wahhabism-backgrounder.html

    What is particularly interesting is, that as Hillary Clinton put it, the United States regards Saudi Arabia as a “close and strategic partner in many of the critical issues facing our world today” given that it is the source of many of these critical issues.

  2. Chris Chuba
    May 27, 2016 at 11:01 am

    Suing sovereign govts in civil courts makes the U.S. legal system look like Venezuela’s, there is no due process, it is nothing more than a Kangaroo court. It is a process comparable to Joe Stalin’s show trials. We have already soiled ourselves in the two civil court decisions against Iran. We created a loophole where a country on the State Dept ‘terrorist country list’ can be sued, this was an abomination.

    Look what happened, Iran didn’t even show up in court to defend themselves even though they had multiple good arguments that they could have made. Why not? Because to do so would be to acknowledge the validity and jurisdiction of the proceedings. Had the U.K. or Israel been subject to such a lawsuit, I very much doubt that they would have shown up either and for the same reason. So here we have a legal proceeding without the slightest pretense of due process.

    Sanctions against foreign govts. should be in the purview of the State Dept. or Congress, not that they would come up with a better or more just decision but simply because at least it would be acknowledged as a political decision. It would not have the veneer of a court decision, one which corrupts our legal process.

  3. GeorgyOrwell
    May 27, 2016 at 6:47 pm

    Why is the legislation just passed combine the possible/pending release of the 28 redacted pages to the question of whether or not the family members can sue Saudi Arabia? These are two separate discussions. Why is the release of the 28 pages being held hostage to a debate about the pros and cons of sovereign immunity? Is one and excuse to hold up the other?

    • chris chuba
      May 28, 2016 at 1:10 pm

      The release of the 28 pages and the right to sue are two totally unrelated issues.
      One could argue that the Administration would be more inclined to NOT de-classify the 28 pages if Congress was successful in passing the legislation in an effort to protect the Saudis.

      The Administration has full control over the security agencies that have the ability to classify the documents. The Consortium has previously published articles that the 28 pages would only be partly damaging to the Saudis anyway since the investigation itself was hamstrung, so it would be inconclusive. However, U.S. politicians are so in the bag for the Saudis they would seek to spare them any embarrassment. This is all one big Kabuki dance, Congress gets to make a big show about caring for U.S. citizens for a piece of legislation doomed to failure; not that I’m cynical or anything.

  4. Eddie
    May 27, 2016 at 9:32 pm

    This bill, from a country that refuses to recognize or honor the International Criminal Court, an attempt at some semblance of international law? (e.g.; see https://consortiumnews.com/2011/06/05/american-exceptionalisms-hypocrisy/ ) Instead the US regressives passed a law stating that they would use military force to retrieve any US citizen charged/convicted by this court.

    It is truly, as stated above, simply “…another example of a feel-good measure that gets broad political support but that would entail significant problems if it ever were to be enacted”, much like the ‘Patriot Act’ passed after 9/11.

  5. Joe B
    May 27, 2016 at 9:35 pm

    As the article argues, domestic courts cannot decide such issues. If a foreign government must be sued, the US must sign the Treaty of Rome and accept jurisdiction of the ICC over its own actions. But instead the US threatens to attack the Hague of he ICC convicts its citizens: some dispassionate observer.

    The US courts have not shown themselves able to fairly judge anything: they simply specialize in making plausible excuses after partisan decisions. The primary skill of the judiciary is that of lawyers, which is lying, and their personal philosophy denies constitutional rights. To believe otherwise would be very naive.

  6. Rikhard Ravindra Tanskanen
    May 28, 2016 at 12:06 pm

    Go to RationalWiki to hear a debunking of 9/11 conspiracy theorists, and if your opinion of this website has “plummeted” due to this, then you are petty, and if your opinion of the readership has plummeted as well, then you are an idiot, as most of the time the readership responds to articles like this with comments supporting the 9/11 Truth Movement. The points made by the 9/11 Truth Movement are points refuted a thousand times.

  7. May 29, 2016 at 3:48 am

    Can the 9/11 families sue the United States for its alleged role in the terror attacks?

  8. Anthony Shaker
    May 29, 2016 at 12:44 pm

    While I can see your point, the whole dilemma presented by the possibility of private citizens suing other governments vs. disclosing information considered vital to public security is the result of a dismal failure of leadership.

    US leaders have been protecting al-Saud as friendly allies, instead of imposing tough, even draconian sanctions on a terrorist Wahhabi regime which literally everyone knows to be terrorist and is traditionally regarded in Islam as religiously heretical. Maybe those US leaders are afraid of blowing the whistle on a fellow traveller, so to speak.

    Every US government has been pandering to this strange clique for reasons of oil, influence (in a time of declining Western power), a flailing Mideast policy and, above all, the protection of Jewish-only Israel.

    Which way out of this dilemma, then?

    Based on what I know of the US Constitution and existing national and international legal frameworks, I don’t think either this or the next administration can dodge the obligation of pulling Saudi Arabia before a tribunal of some kind for 9-11 and imposing those sanctions. The alternative would be a Saudi Arabia free to continue–as indeed it is doing in Syria, Iraq and elsewhere–to organize and use the worst dregs of society to get what it wants.

    The least we can do is to identify the “Islamic” centers in our midst (which are anything but Islamic), the mosques and the international youth organizations controlled by Saudi Arabia and put them on a sanctions list. Some of the people in those outfits should simply be arrested–the evidence is not lacking, believe me. Every outfit in the United States and the European Union touched by Saudi Arabia has to be closely watched. They partly explain how the Saudis have reached so deep inside nearly every country in the world over the decades.

    Saudi Arabia is just a paper tiger built with oil money, and it has no real economy. But that doesn’t make it any less dangerous to public security. This paper tiger is just aching to be puffed away.

Comments are closed.