JASTA is the Justice Against Sponsors of Terrorism Act, passed overwhelmingly by each house of Congress and just vetoed by President Barack Obama (D). The bill would allow the survivors of the 9/11 victims to sue in American courts the Saudi Arabian government and members of it over their alleged role in the terrorist attacks and to seek recompense for those participations.
Without commenting on the legitimacy such suits, or on the likelihood that enough Democrats will roll over for their leader to sustain his veto, I have this on an argument against the bill.
[I]f US citizens are allowed to take the Saudis into court, then foreign countries could do the same to the United States, its diplomats, and its service members.
Whether or not foreign countries “could do the same” to us is a matter of those nations’ domestic law, current or to-be-passed.
Thus: those nations already can “do the same” to us, without waiting for a JASTA suit, and it’s already been done. This is a nakedly specious argument by Obama against the bill.
Obama and the Clintons both have a severe allergy to the truth.
Foreign courts will sometimes enforce U.S. judgments as a matter of comity, though the U.S. stands alone among the developed nations in not having a single judgment enforcement treaty with any other nation. The E.U., by contrast has a treaty (now actually an E.U. regulation) that requires virtually unflinching recognition of judgments through the E.U. There’s also the Lugano Convention which hauls in some of the Scandinavian countries who are not in the E.U. (Sweden and Norway are two I think).
One of the reason that arbitration is so popular in transnational transactions is that the New York Convention of 1957 requires enforcement of arbitral awards subject to some not-insignificant exceptions. It has been ratified by 170 nations (including the U.S.) or so. It can be balky but it’s way better than trying to get a U.S. court judgment enforced abroad.
I’m not sure I disagree with us not having any judgment enforcement treaties with other nations. The differences in legal standards, what constitutes proof, who has the burden of that proof, and so on vary too much, even among nations that have substantially the same values–see the differences among the US, France, and Great Britain, for instance. France’s Napoleonic Code, for instance, essentially proceeds from a presumption of guilt, and it’s the defendant’s burden to prove otherwise. We’re seeing an extension of an outcome of that (apparently, if not in direct extension) in the EU’s accusations against a host of American businesses. I wouldn’t want our people or businesses bound by judgments of such mendacity.
The Lugano Convention, essentially, is between the EU and the European Free Trade Association. Today there is considerable overlap in membership between the two entities, but I have to wonder whether, at the time of signing, EFTA or its individual members were browbeat into signing on as a condition of extending the EU’s free trade policies and rules to the EFTA members.
The EU’s judgment accepting rule stems from the EU’s delusions of nation-statehood, a fantasy that both is at great variance from reality and has no hope of approaching reality. Quite apart from that, what one polity has or does contains no recommendation from that for any other polity.
Best practices kinds of analyses certainly are worth doing, and ideas and policies that another polity might have can be incorporated domestically, but only if they work domestically, not because they work in that other polity.
Eric Hines
It pains me to side with Obama, but I think he’s right though for the wrong (or perhaps an unarticulated) reason. As decidedly imperfect as the Saudi government may be (and yes it does a lot of things I wish it wouldn’t do), I vastly prefer it to Iran in the competition to be the dominant regional power. I would rather not make an enemy out of a friend.
Moreover, I doubt that passage of the law will result in one cent going to the victims. The potential defendants will simply pull their assets out of the U.S. and no foreign court will recognize a U.S. judgment based on this law.
I agree with you on the second paragraph, for a couple of reasons. One is that you’re right on the facts: no money will transfer because an American court’s ruling is unenforceable outside American jurisdiction. The other is that Obama–and Clinton, should she be elected–would simply refuse to release the funds, through whatever extralegal means they can dream up.
My primary problem, though, is with the disingenuousness of this administration’s objections to JASTA. As I pointed out in OP, the law (his veto now overridden by both houses of Congress) changes exactly nothing regarding exposure to “liability” of our diplomats, soldiers, or anyone else a foreign entity takes a notion to…sue.
Ours have already been sued–and “convicted”–in foreign courts on trumped up charges. Obama, Clinton, and theirs know this full well.
Eric Hines