This measure, JASTA, which caused Obama to veto, and caused Congress to over-ride it, is practically a legal hoax!! We are talking law, not politics. Defending the majesty of law. Not the criminality of 9/11 by 19 crazy jihadis of whom 15 claimed to hold Saudi passports. Led by an Egyptian who drank vodka before guiding his band of misfits into the killing of 3000 innocent civilians. Including 600 Muslims.
A hoax (from hocus) is to trick others into believing or accepting as genuine something false and preposterous. That act of Congress, now law, fits that criteria, but with dangerous global ramifications. This abra-cadabra measure demeans not only the term law, but also the U.S. Senate. Why? Totally unenforceable. Any suit based on it, if ever, shall automatically fall in the category of vexatious litigation.
As an international lawyer who has no business relationship with the Government of Saudi Arabia, I have never accepted to litigate a case in which I cannot find my way to a probative proof. The law of evidence, as well as criminal law, require a nexus, a causality, between the accused and the criminalized act. In this regard, how can that requisite be satisfied?
Where is the magic which can link between the Government of Saudi Arabia and a specific and proven instruction or direction to that band of crazies? Telling them "Go and attack America!!" Even if by some magic, a litigant, in this case a family member who lost his/her beloved on that horrible day could find a member of the Saudi governmental hierarchy who is implicated, the corporation or authority, namely the Government, cannot be proven liable.
And suppose an American litigant might claim someday that funding of terrorism have at times been traced to a charitable foundation in Saudi Arabia. You still, as an attorney for the American plaintiff, have to prove in an American court that that foundation is a government front.
And let us say that you are able to prove that with documentation whose veracity and authenticity can be established (the foundation is acting on behalf of the Government). How are you going to serve process on such a presumed defendant, and haul them from Saudi Arabia to an American court of law with appropriate jurisdiction. Kidnap them?
In addition, how can the rightful claims of the Saudi Government that its sovereign land has also been attacked by the same maniacal ideology, be handheld? Is the American plaintiff's attorney going to say: "We are only concerned about America's victims of terror?" The argument that terror is a global phenomenon, and that America and Saudi Arabia are partners in fighting it would be enough to debunk the plaintiff's argument establishing a credible cause of action.
This is a sad day for US Congress as it legislates, not only for a patently magical (thus losing) case. But also for its ultimate effect on the respect of the Rule of Law. As well as of the respect owed by Congress to the Executive in matters of foreign affairs.
This is politics at its worst, painting America, once again, into a corner. Especially when Guantanamo is still open with Muslim detainees who, since 2002, have been neither charged nor released. Except for Khalid Sheikh Mohamed. Only one!!
With terrorism becoming a global phenomenon, so is the growth of the concept of universal jurisdiction. A judge in Spain (Judge Jarson) was able to subpoena Pinochet, a former president of Chile, for human rights abuses affecting Spanish citizens. But Pinochet at the time of that action was no longer head of State. Was a mere senator, seeking medical attention in London.
The International Criminal Court (ICC), established on the basis of the Rome Charter of 1998, has become the image of ineffectiveness. That is although it acts on the same principle: universal jurisdiction. Its woes stem from its complicated procedures; the lack of an agreement between it and the U.N. Security Council; the inclination to focus more on African officials than on others.
To all of this mix, add the fact that the U.S. has not yet become a member of the ICC. Here again the law against Saudi official culpability in terrorism is weakened by the U.S. non-ICC status.
And since the U.S. is committed to the principle that no outside authority could legislate for the U.S., so is the position of all sovereign States around the world. State sovereignty remains supreme.
Along the same line of legal reasoning, the doctrine of foreign sovereign immunity shields sovereigns from the reach of foreign courts. You cannot impel a foreign sovereign to appear before a court unless that sovereign agrees to waive that immunity. Such a waiver happens once in a while in cases of diplomats committing an unlawful act while in foreign jurisdictions. Even in such cases, the capital of that erring diplomat could bring him home because the offended government would exercise the right to have him/her recalled.
No Saudi Government shall ever surrender that principle of international law, particularly when it is wrongly targeted for what is clearly an offense in which it has no role.
In fact the late King Fahd rebuffed the efforts of Osama Bin Laden in 1990 when that Saudi national offered to defend the Kingdom from the aggressive moves of Saddam against Kuwait and Saudi Arabia.
It is ironic that it was Chief Justice John Marshall, of the US Supreme Court who, in 1812, was the first to authoritatively render the doctrine of foreign sovereign immunity. (The Case of The Schooner Exchange v. McFaddon).
Note that foreign sovereign immunity does not deny plaintiffs all relief. It only shuts them out of their own national courts. The families of the victims of 9/11 may legally avail themselves of the Saudi judicial or diplomatic channels. A decidedly non-promising prospect.
The American law now known as "The Justice Against Sponsors of Terrorism Act (JASTA)" unhappily, shall not help the families of the 9/11 victims to find either solace or closure. Congressional machinations in this troublesome presidential election year could only advance the search by those legislators to keep their congressional seats.
Any attorney representing the Saudi Government could find plenty of ammunition in the report of the independent American commission which found no evidence of Saudi Government involvement of any kind or form. Obviously any Saudi holder of American assets or accounts shall have to consider the danger of an illegal seizure of such accounts.
With this law, the US global presences (military, diplomatic, intelligence, economic, educational..etc) are now in danger of counter litigation all over the world. The European Union has warned that if JASTA is passed, other countries could adopt similar legislation defining their own exemptions to sovereign immunity.
As a starter, Riyadh has not only vehemently denied any involvement in 9/11. It has threatened to take counter-measures of various kinds.
The fabric of international law, especially in the area of sovereign immunity, the corner stone of the law of treaties, is now being subjected to wear and tear. Even US laws, such as the Foreign Sovereign Immunities Act of 1976 (FSIA) needs now to be revisited.
The cautionary approach taken by the co-sponsors of that impossible to enforce act, (Senator Schumer of New York and Senator Corker of Tennessee), shall effect no damage containment.
Said Corker: "I do want to say I don't think the Senate nor House has functioned in an appropriate manner as it relates to a very important piece of legislation... I have tremendous concerns about the sovereign immunity procedures that would be set in place by the countries as a result of this vote."
So, I ask Senator Corker in his capacity as Chairman of the Senate Foreign Relations Committee: "Sir!! Then why co-sponsor it and vote for it?" It was President Jackson who hailed from Tennessee who objected to a ruling by Chief Justice Marshall. Jackson uttered an objection which we, as students of American constitutional law, memorized. He in effect said: "John Marshall made his ruling. Let him enforce it." Senator Corker: What cannot be enforced, should not be legislated.
9/11, for Saudi Arabia and the whole world was no "Act of State." So "the effect principle" (the effect of a sovereign act on another sovereignty) has no place here. JASTA is nothing more than the politicization of law. This is why I can't find any majesty in that legal hoax.
Hitting Saudi Arabia, while seeking its cooperation in anti-jihadism, and at Obama, by rendering his veto ineffective, and at the entire fabric of the principle of friendly relations among nations, are nothing but legitimating the charge against America of becoming a super power with an ineffective rudder to its ship of State. JASTA is born with a boomerang destined to hurt these United States.
The Romans, through Latin, were way ahead of the U.S. Congress. They bequeathed to us, lawyers, an exit from bad laws. Phrased it in these words: "Modus et conventio vincunt legem." (Custom and agreement overrule the law.)
Sadly, the exit here is to ignore that silly JASTA. A law which tantalizes but shall not deliver. Which prompted the Saudi Crown Prince to declare in Ankara, Turkey, on September 29: "Our Lands are being targeted. Up with our defenses."
No comments:
Post a Comment