- - Tuesday, October 4, 2016

Detractors of the Justice Against Sponsors of Terrorism Act (JASTA) are to justice what slaveholders were to freedom.

They deplore the statutory exposure of foreign governments to liability in United States courts for international terrorist murders or assassinations here. They are seemingly appalled that the law, if it had been enacted in 1976, would have exposed Chile to civil litigation by the estates of former Chilean foreign minister Orlando Letelier and Ronni Moffitt for their murders in Washington, D.C. ordered by Chilean President Augusto Pinochet and executed by the head of Chile’s secret police, Manual Contreras. A declassified October 6, 1987 Memorandum from Secretary of State George Schultz to President Ronald Reagan relates: “[T]his is a blatant example of a chief of state’s direct involvement in an act of state terrorism, one that is particularly disturbing…because it occurred in our capital….”

JASTA’s critics must be equally alarmed by the prospect that North Korea could be sued for damages under the new law if the Supreme Leader of North Korea, Kim Jong-un, undertook cyber-terrorism that caused a plane to crash, a train to derail, a power plant to fail, or otherwise in the United States that caused deaths.

Have they no sense of decency?

The American Revolution was fought, among other things, to overthrow the principle that, “The King can do no wrong.” In the famous case of Marbury v. Madison (1803), Chief Justice John Marshall sermonized that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury…[We cannot have a] government of laws, and not of men … . if the laws furnish no remedy for the violation of a vested legal right.”

The law protects the weak from the strong. Among the strong, governments are the strongest because they enjoy monopolies on legalized violence and the taxing power. The law is on its highest moral ground when it holds governments accountable for their wrongdoing — especially acts of international terrorism that cause death, physical injury, or the destruction of property.

JASTA’s provision of a civil cause of action against any foreign state complicit in international terrorism in the United States is thus morally irreproachable. It is retroactive to September 11, 2001. Saudi Arabia may be a defendant if credible proof of its complicity in the approximately 3,000 terrorist murders on that date can be unearthed.

The statute does not invite frivolous litigation against foreign governments. Plaintiffs will encounter at least three substantial deterrents: expense, time, and the difficulty of discovering substantial incriminating evidence before a complaint is even filed. The latter is necessary to avoid immediate dismissal of the complaint under the Supreme Court’s strict pleading standards.

Ambrose Bierce’s Devil’s Dictionary defined a lawsuit as: “A machine which you go into as a pig and come out of as a sausage.” Would-be plaintiffs know that.

President Obama’s futile veto message expressed horror that JASTA might provoke foreign nations to expose the United States to civil litigation in their courts for complicity in international terrorism in their countries. Why the horror? If there is proof in a tribunal bearing the trappings of due process, the United States should pay the victims of its international terrorism. We applauded when Libya paid more than $1 billion to the families of victims of the 1988 Lockerbie bombing of Pan Am flight 103 in which it was implicated.

In many foreign nations, however, courts are political tools of the government. They could be used to harass the United States with judgments resting on fabricated or flimsy evidence of international terrorism. But if a foreign nation wishes to harass the United States in that way, it will do so irrespective of JASTA.

The financial or military leverage we enjoy over most nations will deter them from inviting vexatious litigation against us in their courts. The tale of Belgium is exemplary. A 1993 law, amended in 1999, created jurisdiction in Belgium courts for crimes against humanity, genocide or war crimes occurring anywhere in the world. Under the law, complaints were filed against former President George H.W. Bush, former Secretary of Defense and Vice President Dick Cheney, former Chairman of the Joint Chiefs of Staff Colin Powell, and U.S. Gen.l Tommy Franks. Then-Secretary of Defense Donald Rumsfeld promptly journeyed to Brussels to threaten withdrawal of NATO headquarters if Belgium tarried in repealing the law. Belgium saluted. The law was repealed in August 2003. And the complaints were dismissed.

It speaks volumes about our dangerous love affair with limitless executive power that a Washington Post editorial scorned JASTA as “Mob legislating by Congress.” If there are more Orwellian characterizations of the statute, they do not readily come to mind.

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