From an emotional standpoint, the Justice Against Sponsors of Terrorism Act has some appeal. The bill, which is still being finalized, aims to open U.S. courts to civil lawsuits by Americans against foreign governments tied to terror attacks in the United States. Though it would be written broadly enough to encompass all the countries in the world, the bill has a clear target: Saudi Arabia. Proponents say they want to allow families of the nearly 3,000 victims of the 9/11 attacks seek damages in court if proof emerges that the Saudi government supported the 19 al Qaeda hijackers, 15 of whom were Saudis.
It may sound good, but it's a bad idea.
Saudi Arabia isn't the most embraceable of U.S. allies. It executes people with abandon, including 47 in one day in January on charges ranging from involvement in terror attacks to disloyalty. The royal family's repression of women — from its draconian dress codes to its requirement that women be accompanied by male chaperones when leaving the house — offends basic concepts of human rights and equality, as does its practice of imprisoning dissidents. The government embraces public flogging as punishment for some crimes, a judgment facing Palestinian poet Ashraf Fayadh, who has been sentenced to eight years in prison and 800 lashes. His offense? Apostasy, based on poems that the government said embraced atheism and spread “some destructive thoughts into society.”
What's more, the Saudis have close ties to deeply unsavory organizations. The bill currently making its way through Congress was prompted, in part, by investigations showing that leading Saudis helped bankroll Al Qaeda, though the reports that have been released so far have stopped short of linking Osama bin Laden's terror group to the Saudi royal family or government. Speculation continues to swirl around 28 pages of an 838-page congressional report on the 9/11 attacks that were withheld as classified when the rest of the report was released in 2002. The Saudi government has denied any complicity in the attacks. The pages were ordered classified by President George W. Bush, who said he feared their release would divulge sensitive investigative techniques.
The Obama administration has been reviewing the 28 pages and reportedly will soon declassify some of them. It ought to release all of them.
But regardless of the Saudi role in 9/11, it would be a big mistake to pass the bill, which would badly undercut the legal principle of “sovereign immunity.” Rooted in international law, sovereign immunity protects governments from being held to account in the courts of another country (with some narrow exceptions). Obviously, the downside of this is that it sometimes protects bad governments from being punished for their policies and actions. But on the other hand, it also serves as needed protection against trumped up or politicized prosecutions in courts around the world. And be warned: If Congress strips governments everywhere of their protection in U.S. courts, those countries will almost certainly adopt similar policies against the U.S.
That would lead to a mish-mash of legal challenges, claims of damages, and complicated international relations. Given the U.S. government's disproportionate role in foreign affairs, the potential exposure such a measure would bring to the U.S. is inestimable. Expect to see civil claims by victims of collateral damage in military attacks, lawsuits by people caught up in the nation's post-9/11 detention policies, including Guantanamo Bay, and challenges over atrocities committed by U.S.-backed Syrian rebels. Pretty much anywhere that U.S. policies have led to damages, those who suffered could potentially seek redress in their own courts, jeopardizing American assets overseas, where the rule of law sometimes is solid, but in other cases is a tool wielded for political purposes.
Fearing its exposure in American courts, Saudi Arabia has already threatened to sell $750 billion in U.S. assets that it says would be at-risk if the proposed law goes into effect.
The 9/11 attacks were horrific, and the losses suffered by the victims' families are incalculable. But the solution is not to open this Pandora's Box. If the Saudi government is found to have supported the attacks, a resolution should be reached through diplomacy, nation to nation, not through individual claims in civil courts.