As Saudi lobbyists continue to fly U.S. military veterans to Washington to oppose a recently-passed law that cleared the way for 9/11 families and victims to sue the kingdom for its alleged assistance to the hijackers, an expert on international law says the principal argument motivating the veterans’ participation is false.
Lobbyists are persuading veterans to call for the amendment or repeal of the Justice Against Sponsors of Terrorism Act (JASTA) by claiming that, if other countries reciprocate and pass similar laws, individual military service members and veterans will be exposed to lawsuits in foreign courts.
William S. Dodge, a former counselor on international law at the U.S. State Department, tells 28Pages.org that notion is fundamentally at odds with the actual language of JASTA itself and the principles of international law.
“JASTA poses no risk of exposing U.S. service members to lawsuits in foreign courts. JASTA deals only with the immunity of foreign states, not individuals,” says Dodge, a professor at the University of California, Davis School of Law.
For months now, lobbyists for Saudi Arabia have been using that argument to stir unfounded alarm among veterans—and, in a remarkable demonstration of the kingdom’s spending power, flying scores of them to the nation’s capitol and covering stays at the pricey Trump International hotel.
It’s not clear how many veterans traveling to Washington realize that Saudi Arabia is paying their way. A copy of a travel agency itinerary sent to one veteran only lists D.C.-headquartered Advocacy Group Inc as the payor. In October, the firm’s president, Michael Gibson, and director of field operations, Sara Raak, registered with the Department of Justice as agents of Saudi Arabia. (If you’re a veteran who has joined this effort or been asked to, please share your experience with us: email@example.com.)
Anti-JASTA lobbying material circulating among activist veterans and obtained by 28Pages.org declares that “retaliatory foreign lawsuits inspired by JASTA pose a significant threat to U.S. military personnel, diplomats and officials abroad.”
That claim has been effective in sparking concern among veterans—but it’s false. “If another country decided to pass a similar statute, it might affect the immunity of the United States, but not individual officials or service members,” says Dodge, who studied JASTA closely along its long path to enactment last September, writing three pieces on it for Just Security.
That’s not the only fallacy in the Saudi-funded line of attack: the prophecy of an impending wave of “retaliatory” legislation around the world is also suspect.
“The United States had a terrorism exception in its Foreign Sovereign Immunities Act for 20 years before JASTA. If another country wanted to pass a similar statute, the prior exception would be all the precedent it would need, even if JASTA were repealed,” says Dodge.
Don’t bet on foreign legislatures leaping into action anytime soon. “It seems unlikely that any country will pass similar legislation. In the 20 years before JASTA, only one country—Canada—adopted a similar law,” he says.
Dodge also takes a dim view of claims that drone strikes would make the United States government vulnerable if other countries enacted laws like JASTA. That’s one of the principal talking points of Senators Lindsey Graham and John McCain, the leading JASTA opponents on Capitol Hill.
“If we don’t (amend JASTA), here is what I fear: that other countries will pass laws like this,” said Graham in November. “They will say that the United States is liable for engaging in drone attacks or other activity in the war on terror and haul us into court as a nation and haul the people to whom we give the responsibility to defend the nation into foreign court.”
Dodge dismisses that premise. “The references to U.S. drone strikes seem like a red herring to me,” he says. “Drone strikes are military activities. The International Court of Justice held in 2012 that international law gives states immunity from suit based on their military activities, even if those activities violate international law.”
Retired Army Colonel Lawrence Wilkerson, who served as chief of staff to Secretary of State Colin Powell in the George W. Bush administration, agrees that JASTA poses no risk to individual service members, and urges veterans who are involved in the anti-JASTA campaign to exercise caution.
“Be careful about the position you take, particularly with regard to the country that beheads 150-plus people every year with axes, wages a merciless war in Yemen, and very likely had elements of its leadership involved in the horrendous terrorist attacks on the U.S. on September 11, 2001. Lawsuits might be the only way to get more clarity on the Saudi complicity in these horrendous attacks,” says Wilkerson.
Whether already lobbying against JASTA or considering it, veterans should recognize that Saudi Arabia’s eagerness to fly them to Washington and put them up in an expensive hotel is driven by a single, self-serving goal: To prevent 9/11 families and victims from presenting evidence against the kingdom in open court.
And while Saudi Arabia and many U.S. government officials claim that the 9/11 Commission exonerated the kingdom, members of the commission say otherwise.
“Nothing could be further from the truth,” wrote former senator Bob Kerrey, a Navy SEAL and Medal of Honor recipient who served on the commission, in a September 2016 piece endorsing JASTA.
Read it all.