osewalrus (osewalrus) wrote,

I attempt to explain exactly what is wrong with JASTA

Folks may have heard about the Justice Against Sponsors of Terrorism Act (JASTA). That's the bill that most people only vaguely know as the one that lets the 9/11 families sue Saudi Arabia for 9/11 or something. But it has suddenly dawned on the leaders of Congress that there are "unforseen consequences" with the law, which they hope to correct when they get back from campaigning. Also, they blame Obama for somehow not stopping them from overriding his veto.

The problem is that the law does what it is actually supposed to do. It is the very concept of the law and its passage that creates the "unforeseen consequences." As I explain below, America just drunk tweeted its break up with Saudi Arabia, and that's not something you can fix with some legislative tweaks after you get to run on the very popular but insanely stupid bill.

First, here is the text of JASTA.

As a general matter, sovereign states are not responsible for their actions in courts of law (a doctrine known as "Sovereign Immunity"). This reflects the very real problems of countries subjecting each other to their own legal processes. Similarly, individuals are generally only responsible for the reasonably forseeable consequences of their actions. Example: if I leave a heavy object on a windowsill, it is reasonably foreseeable that it could fall and hurt someone -- although this is not certain. (Please don't waste my time in the comments arguing about Torts 101 here). Additionally, countries do not generally subject foreign nationals to liability for things not directly connected to them. e.g., we don't let people sue the Koch Brothers for things we think they are generally responsible for because we see a connection between their funding groups that work toward these particular goals.

The 9/11 families hold the royal family of Saudi Arabia and its clergy responsible for the Wahabist movement that created Al Qeda and led directly to the deaths of Americans in the 9/11 attacks. As a statement of general culpability, that's eminently reasonable. The Saudi government has a long and well documented history of funding Wahabi religious education throughout the world. But as a specific question of legal liability, it is very clear that the Saudi Government did not plan the 9/11 attacks. In fact, Osama Bin Ladin was in exile because he had gone too far for the House of Saud and was challenging their rule for cooperating with the western "Crusaders."

Nevertheless, for perfectly understandable emotional reasons, many of the 9/11 families want to hold Saudi Arabia's royalty and religious leadership accountable for their role in creating the environment and supporting the Islamic extremist ecosystem that made 9/11 possible. Additionally, a large portion of the left and right are generally pissed at Saudi Arabia (helps that oil is at a consistently low price for awhile). There is an accumulated list of grievances. On the right, we start with the accusations of their fostering Islamic extremism that has given birth to Al-Shabbab, Al Qeda and other terrorist groups ostensibly seeking to overthrow governments they regard as insufficiently whatever. (The fact that Saudi Arabia is now literally hoisted by its own petard is not relevant to these grievances.) There is also the perception that Saudi Arabia and other Mid-Eastern allies are free loaders who aren't doing enough for us, who ought to be putting "boots on the ground" in Syria and Iraq to take out ISIS, and who make our life difficult by being enemies of Israel.

On the left, the list of grievances includes Saudi Arabia's wretched human rights record and its newfound interest in foreign adventurism in Yemen -- where Saudi military action is killing squindoodles of civillians. This bipartisan disenchantment was reflected in the recent vote to approve the sale of arms to Saudi Arabia, which had a substantially higher percentage of no votes than any such previous sale.

So everything was ripe for a bipartisan bill that would allow the 9/11 families to sue Saudi Arabia. Because the Constitution does not allow you to target individuals directly (this is the "Bill of Attainder" clause), Congress passed a general law that was designed to allow the 9/11 families to sue the government of Saudi Arabia, the members of the royal family who contributed money to what eventually turned out to be Al Qeda, etc.

And from the technical perspective of "does the bill do what it is supposed to do," the answer is "yes." There is nothing *wrong* with the bill if the objective is to override the existing norms of international law and impose liability on individuals and governments for consequences that were "foreseeable" in the general sense but not in the usual legal sense.


The problem is that the United States just totally changed international norms of law. Well, not completely. There have been countries that have tried to do stuff like this. Spain did this back in the 1990s with Pinochet. Belgium had a law that let individuals sue for war crimes until they repealed it abruptly in 2004.

Belgium's experience is reflective of why this is suddenly a problem. At first, the only people that got sued in Belgium under this law were Sharon and other Israelis, so everything was totally OK, because -- Jews Israel! But then, after the U.S. invaded Iraq, some people decided to sue George Bush, Dick Cheney, Rumsfeld, etc.

At that point, the Belgian legislature recognized that the usual rule at the UN,"what you do to Israel doesn't really create a norm of International law applicable to everyone else," doesn't apply to actual law. if you pass a law that lets people sue for war crimes, even if you only *mean* for it to apply to Israel, it actually applies to everyone in the entire world that other people think are as bad as Sharon, even if you -- the Belgian government -- want to have diplomatic relations with them and want them to visit your country and stuff.

Since the other countries doing this stopped as soon as the rest of the world explained to them the consequences, the idea of holding leaders and individuals responsible for stuff like this did not catch on and all the people folks in other countries (and some in the U.S.) consider criminally liable for "crimes against humanity" (however they want to define it) are free to go wherever they want. But now, the United States has just said "it is totally OK to have a law like Belgium had. Heck, our law is even broader than the one Belgium had! Whoooo Hoooo!!!!"

Additionally, to the extent that anyone cares about our relationship with Saudi Arabia -- and the other Sunni monarchies -- we have just told them we hate them and hold them responsible for the very terrorism we are all supposed to be working together to fight (now that it clearly impacts the monarchies themselves). If you are (a) a leftist Democrat peacenik who thinks we should stop policing the world and should stop supporting regimes with horrible human rights records; or, (b) a right wing isolationist who thinks we should stop wasting money supporting these Muslim regimes and, anyway, we can just tell them to do what we want because we are America and we should stop coddling these guys because they need us and we can kick their ass so they should suck it up, then what we just did was totally cool. You sent Saudi Arabia the message you wanted to send. If, however, you are a Democrat or Republican in between these two extremes, the "unintended consequence" is that you have just sent an unambiguous signal to Saudi Arabia, and to the other Sunni Monarchies and Egypt, that they can no longer count on us as reliable allies. Oh yeah, and they are also pissed as Hell at being blamed for the whole terrorist thing, because they totally did not expect it to get out of hand like this and hate being reminded this is their fault -- but that's besides the point.


Let me explain this with a contemporary analogy. Pretend the Congressional supporters of this bill are like a guy who has hit a bad patch with his long time boyfriend. Guy and his buddies go out and get trashed. They also bring along their nerdy boring roomate most of them either dislike or actively hate (and even the ones who kind of like him think he's too intellectual and stuck up). When everyone is good and smashed, except for nerdboy, our guy sees a Tweet from his SO and he decides he just has had enough! He is gonna tweet to Brad how much of an ugly asshole he really is. His friends who never like Brad are totally cheering him on. Even the ones who usually like Brad and think Guy is kinda responsible for the problems get caught up in the crowd and get totally into it.

The only one who does anything about it is Nerdboy. Nerdboy starts saying after the first Tweet "Guy, what are you doing!" As the crowd eggs Guy on to Tweet ever more insulting things about Brad, Nerdguy gets louder and more insistant that Guy needs to put down the phone. But the friends who never liked Brad (or Nerdboy) shout him down. Finally, Nerdboy walks over to Guy and grabs his phone and says "Dude, Stop it! You are seriously going to ruin your life and you are makng an ass of yourself on Twitter for the whole world to see."

But Brad and everyone else are waaaaay to into this now to let Nerdboy talk sense into them, so they grab the phone back and keep Tweeting, up to an including sending a picture of Guys asshole to Twitter with the caption "I'd say kiss my ass, but you'd like that too much. Goodbye loser!"

The next day, Guy and his friends wake up hung over. Guy is like "shit, I just totally ruined my life." All the friends who hated Brad are like ":No man, that was awesome! You totally showed him what for!" And Guy texts Brad and is like "Dude, I was drunk las night, can we maybe try to get together next week and talk about it?"

Then guy looks at Nerdboy and says: "This is your fault! Why the Hell didn't you stop me!"

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