The Litigious Society's Latest Take on Terrorism
The other reason involving judiciability concerns the nature of the state involvement in question. Saudi Arabia's policies and practices and specifically its use of religious ideology have for many years fostered extreme and intolerant versions of Islamism, including the violent form that manifested itself in the 9/11 attacks. Indeed, Saudi policies in this regard have had harmful effects in ways that go far beyond 9/11 or even international terrorism generally. It is proper for these matters to be a major focus of U.S. policy toward Saudi Arabia. But the connections between Saudi policy and 9/11 are of a much more general and indirect sort than what normally makes for a tort that can be the basis of a cogent lawsuit. Notwithstanding all the malign effects of the Saudi regime's handling of Wahhabism, no direct link has surfaced publicly between that regime and the 9/11 operation. An undesirable and counterproductive result would be for someone to try to make a lawsuit out of the matter and then, because of the insufficiency of suitable evidence, to lose the suit.
The bill that passed the Senate is thus another example of a feel-good measure that gets broad political support but that would entail significant problems if it ever were to be enacted. Underscoring this observation are two ironies and inconsistencies involving this bill.
One is that the Senate action comes not long after a decision by the U.S. Supreme Court upholding a previous act of Congress that took a matter of victims' compensation for state-sponsored terrorism out of the hands of litigants and had the policy-making branches decide it instead. The specific case concerned whether assets of the Iranian central bank were fair game for lawsuits seeking individual compensation for terrorism in the 1980s by Iran's client Lebanese Hezbollah. Two of the justices dissented because the statute under consideration short-circuited pending litigation, making it look as if Congress was ordering a court how to decide a case before it. But a majority of the Supreme Court agreed with both Congress and the Obama administration that this was a proper matter for the policy-making branches to determine, regardless of any lawsuits that had already been initiated.
The other irony and inconsistency is that many of those who are supporting the Cornyn-Schumer bill's movement into the courts of a response to international terrorism have long been proclaiming that terrorism is “war” not “crime” and have done their utmost to prevent accused terrorists from being tried in federal court. This is even though the federal judicial system has demonstrated repeatedly that it is well-suited to try fairly and to punish effectively individual accused terrorists. Now by attempting to make states into defendants in civil suits in that same federal court system, the courts are being given a job for which they are poorly suited. States cannot be put in the dock or cross-examined, and their cases inevitably get into foreign policy issues. This combination of uses and non-uses of the courts—to put states on trial but not to put individual suspects on trial—has it all backward.
Image: Scales of Justice. Pixabay/AJEL. Public domain.