In a rare show of bipartisanship, Congress finally overrode a President Obama veto in September when it passed the Justice Against Sponsors of Terrorism Act (JASTA). JASTA allows families of the 9/11 victims to sue the government of Saudi Arabia over its alleged involvement in the terror attacks. Too bad Congress chose the wrong vehicle to display its bipartisan courage toward Obama and the Saudis.
I worked at Ground Zero in NYC for several days immediately after the attacks. While we all empathize fully with the 9/11 victims’ families and many would like to see the Saudi role in the 9/11 attacks investigated further, JASTA is not the solution.
Instead, JASTA is such an unprecedented overreach it could undermine our ability to defend our interests across the globe for years to come. In its ill-advised quest for justice against terrorism, Congress may actually be hampering our ability to fight it.
By allowing private U.S. citizens to sue a foreign government in federal court, JASTA would gut the 500-year-old principle of sovereign immunity across the board. This principle protects America, as the world’s premier global power, more than any other country.
As a former Marine Corps officer, and U.S. military attaché posted to U.S. embassies in hotspots worldwide, I can attest to the protection this principle provides our military, diplomats and intelligence operatives in places like the Middle East, the Balkans, Latin America, Asia, and even Europe. The U.S government has people performing important and dangerous duties across the entire world.
Without sovereign immunity, countries with questionable legal systems such as Russia, China, Pakistan or Venezuela, could prosecute our soldiers, diplomats and spies, or allow their citizens to file unwarranted lawsuits against them, or the U.S. government, in their local courts. Their claims would not need to have merit. Following the passage of JASTA, an Iraqi group has already taken legal steps to do just that. Others are expected to quickly follow suit.
This is why leading U.S. security officials, including CIA Director John Brennan and Defense Secretary Ash Carter, have warned that this law would allow foreign nations to impede U.S. counter-terrorism operations and force the disclosure of sensitive classified material.
JASTA “will have grave implications for the national security of the United States,” Brennan warned. “The most damaging consequence would be for those U.S. government officials who dutifully work overseas on behalf of our country. The principle of sovereign immunity protects U.S. officials every day, and is rooted in reciprocity.” If we violate it, so will everyone else.
Sovereign immunity has been a bedrock principle governing relations between states for five centuries. It holds that governments cannot be sued for civil wrongs without their consent. It preserves the right of governments to settle disputes with other governments on behalf of their citizens. This prevents the chaos that would be caused by individuals suing governments throughout the world for any number of wrongs — real, or imagined.
No nation wants this. In fact, several countries raised their deep concerns about JASTA with Washington, including the Gulf Cooperation Council, the European Union, the Netherlands, Turkey and Pakistan — countries where thousands of U.S. soldiers have been, are now, or could be stationed.
Undermining centuries of international legal tradition to pass politically motivated legislation is never prudent. Fortunately, 28 senators who voted for JASTA have sent a letter to JASTA’s lead sponsors expressing buyer’s remorse. They are concerned about the “unintended consequences,” of Americans facing “private lawsuits in foreign courts as a result of important military or intelligence activities.”
That’s an encouraging start. Congress needs to revisit JASTA as soon as possible after the election, and either repeal it, or significantly restrict its scope to cover only the families of 9/11 victims. Whatever course it follows, Congress needs to act quickly. Our troops and operators overseas deserve it.
Paul Crespo is president and CEO of SPECTRE Global Risk, an international security consulting firm. He is a former officer in the U.S. Marine Corps and served worldwide as a military attaché with the U.S. Defense Intelligence Agency.