Relations between governments are best handled through diplomacy, not legal proceedings.
Why, when the Republican-controlled Congress is finally willing to fight President Obama to the point of forcing and potentially overriding a veto, do they pick an issue on which Obama is right?
In a grandstanding exhibition, Congress has enacted legislation that would enable private litigants — the most sympathetic imaginable, the families of 9/11 victims — to sue the government of Saudi Arabia. Obviously, even if it is sued successfully, the Saudi government is never actually going to pay any judgments. More to the point, legislation of this kind will spur other countries to enact laws allowing their citizens to sue the United States — and maybe even criminal laws allowing the arrest of current and former American government officials (including military personnel) — for actions taken in defense of our country and pursuit of our interests.
Since we have interests throughout the world and a military that acts globally (and lethally), our nation has far more to lose than most nations by playing this game. Consequently, while I get the populist zeitgeist, it is disappointing to see people who ought to know better claiming that a veto would represent Obama’s prioritizing of Saudi interests over American interests. It would do nothing of the sort.
Moreover, the fervor for this legislation is indeed ironic for Republicans who complain — quite justifiably — that Obama regards international terrorism as a law-enforcement matter to be pursued in the courts. The judiciary is no more proper a forum for conducting diplomacy than it is for dealing with a national-security challenge.
Relations between the United States and any other sovereign, including the Saudi regime, ought to be managed by the political branches — in particular, the executive — in whom the Constitution vests responsibility. They should not be subject to litigation overseen by politically unaccountable courts. Legal cases can be unpredictable due to the differences in the predispositions and skill levels of the individual judges and litigators. That is not a problem in the vast run of private lawsuits, since the appellate process sorts out most errors. But it can be a huge problem in international relations, on which hinge alliances and intelligence-gathering arrangements on which our security depends.
That, of course, is why countries mutually grant their officials diplomatic immunity, which bars prosecution of even serious crimes committed by diplomatic personnel. It is why a country’s diplomatic installations are considered its sovereign territory even on foreign soil — such that violating them — as, for example, Iran did to our embassy in 1979 — is an act of war. These norms often work injustices in individual cases, but it is imperative that we preserve them.
A foreign government is not like a private litigant, and has historically not been treated as such.
To be clear, I have no sympathy for the Obama administration’s concerns about enraging the Saudi regime. We should be enraging them. I doubt if anyone was more vigorous than I in arguing that there should be full disclosure of the Saudi role in the 9/11 attacks — including the publication of previously sealed pages from a congressional report. The United States should stop pretending that the Saudis are a reliable counterterrorism ally. We should be exposing and condemning the regime’s enforcement of barbaric sharia corporal penalties, as well as sharia’s systematic discrimination against women, apostates, non-Muslims, Muslim minorities, and homosexuals.
As I’ve previously argued, there is also no reason why the Obama administration could not negotiate with the Saudis in an effort to create a fund to compensate 9/11 victims. The Saudis would of course be resistant, but we have cards to play in such a negotiation. Plus, the Saudis might well prefer to appear magnanimous in contributing to a fund than suffer the indignity of being found culpable for 9/11 in legal proceedings. It may not work, but it is worth trying.
Furthermore, there is no restriction, and should be none, on civil lawsuits against individual Saudi citizens and entities that are complicit in terrorism, including the 9/11 attacks. We should be more aggressive in prosecuting Saudi entities, including “charities,” that provide material support to terrorism — an imperative President Obama has slackened on in the name of appeasing Islamists.
#related#Nevertheless, a foreign government is not like a private litigant, and has historically not been treated as such. Real security depends on maintaining the international system of sovereign states that respect each other’s sovereignty. It is the transnational progressives who envision a post-sovereign world in which unelected judges and international organizations call the tune, undermining the prerogatives of nationhood and democratic self-determination. (See, e.g., my review in The New Criterion of Justice Stephen Breyer’s The Court and the World.) Why would Republicans want to contribute to that effort?
Obviously, the bipartisan legislation is popular: We would all like to see the 9/11 families made as whole as possible (though their losses can never really be fully compensated). And we’d like to see the Saudis get their well-deserved comeuppance as a leading sponsor of jihadist terror.
A great deal of long-term damage, though, can be done by something that, however fleetingly popular, sets a terrible precedent. This is a wrong-headed bill, and President Obama is right to veto it.