The US legal measure the Justice Against Sponsors of Terrorism Act (JASTA), which caused US President Barack Obama to use his veto and Congress to override it, is practically a legal hoax. We are talking about law, not politics, and we are defending the majesty of the law, not the criminality of those who carried out the 9/11 attacks, 19 crazy jihadis of whom 15 claimed to hold Saudi passports. They were led by an Egyptian who drank vodka before guiding his band of misfits into the killing of 3,000 innocent civilians including 600 Muslims. A hoax (from hocus) aims to trick others into believing or accepting as genuine something that is false and preposterous. The act of the US Congress, now law, fits that criterion, but with dangerous global ramifications. This abracadabra measure demeans not only the term law, but also the US Senate. Why? Because it is totally unenforceable. Any legal suit based on it, if there ever is one, would automatically fall into 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 in a case in which I can not 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 criminalised act. In this regard, how can that prerequisite be satisfied? Where is the magic that can link the government of Saudi Arabia and a specific and proven instruction or direction to that band of crazies, telling them to “go attack America”? Even if by some magic a litigant, in this case a family member who lost his or her loved ones on that horrible day, could find a member of the Saudi governmental hierarchy implicated in the act, the corporation or authority to which that person belonged, namely the government, could not be proven liable. Suppose an American litigant claimed someday that the funding of terrorism had been traced to a charitable foundation in Saudi Arabia. An attorney for the American plaintiff would still have to prove in an American court that that foundation was a government front. Let us say that it was possible to prove with documentation whose veracity and authenticity could be established that the foundation was acting on behalf of the government. How would it be possible to serve process on such a presumed defendant and haul them from Saudi Arabia to an American court of law with appropriate jurisdiction? By kidnapping? In addition, how would the rightful claim of the Saudi government that its sovereign land has also been attacked by the same maniacal ideology be handled? Would the American plaintiff's attorney say that “we are only concerned about American 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. The passage of JASTA is a sad day for the US Congress as it legislates not only for a patently magical (and thus losing) cause, but also because of its ultimate effect on the respect of the rule of law and 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. This is especially the case when the Guantanamo Bay prison camp is still open and contains Muslim detainees who have been neither charged nor released since 2002 with the sole exception of Khaled Sheikh Mohamed. With terrorism becoming a global phenomenon, so has the growth of the concept of universal jurisdiction. A judge in Spain was able to subpoena former president of Chile Augusto Pinochet for human rights abuses affecting Spanish citizens. But Pinochet at the time of that action was no longer head of state. He was a mere Chilean senator seeking medical attention in London. The International Criminal Court (ICC), established on the basis of the Rome Charter of 1998, has become the very image of ineffectiveness. This is despite the fact that it acts on the same principle: Of universal jurisdiction. Its woes stem from its complicated procedures, the lack of an agreement between it and the UN Security Council, and the inclination to focus more on African officials than on others. The US has also not yet become a member of the ICC, and the case against Saudi official culpability in terrorism is strengthened by US non-ICC status. Since the US is committed to the principle that no outside authority can legislate for the US, the same position is true for all other sovereign states around the world. State sovereignty remains supreme. Along the same lines of legal reasoning, the doctrine of sovereign immunity shields such sovereigns from the reach of foreign courts. You cannot impel a foreign sovereign to appear before a court unless that sovereign agrees to waive immunity. Such a waiver happens once in a while in cases of diplomats committing unlawful acts while in foreign jurisdictions. But even in such cases, the capital of the erring diplomat concerned could bring him home instead of seeing him taken to court in a foreign country because the government could exercise the right to have him or her recalled. No Saudi government would ever surrender that principle of international law, particularly when it is wrongly targeted for what is clearly an offence in which it had no role. In fact the late king Fahd of Saudi Arabia rebuffed the efforts of Osama Bin Laden in 1990 when the latter, a Saudi national, offered to defend the country from the aggressive moves of former Iraqi president Saddam Hussein 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 in the case of the Schooner Exchange vs McFaddon. It should be noted that foreign sovereign immunity does not deny the 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 Saudi judicial or diplomatic channels, though this is a decidedly non-promising prospect.
NO ASSISTANCE:JASTA unhappily will not help the families of the 9/11 victims to find either solace or closure. Congressional machinations in this troublesome presidential election year in the US will only advance the search by 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 in the 9/11 attacks. Obviously, any Saudi holder of American assets or accounts would also have to consider the danger of an illegal seizure of such accounts in the wake of JASTA. With this law, the US global presence (military, diplomatic, intelligence, economic and educational) is 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, but it has also threatened to take counter-measures of various kinds. The fabric of international law, especially in the area of sovereign immunity, the cornerstone 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) need now to be revisited. The cautionary approach taken by the co-sponsors of this impossible to enforce act, Senator Schumer of New York and Senator Corker of Tennessee, will not carry out any damage containment. Corker said "I do want to say I don't think the Senate or the 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 would like to ask Senator Corker in his capacity as chair of the Senate Foreign Relations Committee, then why co-sponsor the act and vote for it? It was former US president Andrew Jackson, who hailed from Tennessee, who objected to a ruling by Marshall. Jackson uttered an objection which all students of American constitutional law have memorised. He said, "John Marshall has made his ruling. Now let him enforce it." What cannot be enforced should not be legislated. The events of 9/11, for Saudi Arabia and the whole world, were not acts of state. As a result, the effect principle (the effect of a sovereign act on another sovereign) has no place here. JASTA is nothing more than the politicisation of the law. And it is for this reason that there is no majesty in this legal hoax. Hitting Saudi Arabia while seeking its cooperation in anti-jihadism, hitting out at Obama by rendering his veto ineffective, and hitting at the entire fabric of the principle of friendly relations among nations is nothing but legitimating the charge against America of becoming a superpower with no effective rudder to guide its ship of state. JASTA has been born in the shape of a boomerang destined to hurt the United States. The Romans, through their use of Latin, were way ahead of the US Congress. They bequeathed to lawyers an exit from bad laws, phrasing this in the words "modus et conventio vincunt legem" (custom and agreement overrule the law). Sadly, the exit here is to ignore JASTA, a law which tantalises but cannot deliver. It is a law that prompted the Saudi crown prince to declare in Ankara on 29 September that “our land is being targeted. Up with our defences." The writer is a professor of law at New York University.
