End Sovereign Immunity Once and for All

Holding Nazis accountable represented a departure from old norms on state sovereign immunity. Why stop there?

Last month, President Obama vetoed the Justice Against Sponsors of Terrorism Act (JASTA).

Although not mentioning any country by name, JASTA opens the door for lawsuits by families of 9/11 victims against the Kingdom of Saudi Arabia.

Under current law, private litigation against a foreign nation can only proceed in U.S. courts under an exception to the Foreign Sovereign Immunities Act (FSIA). One exception is when the defendant-nation is a federally designated state sponsor of terror.

Of course, judges, juries, and lawyers have been developing the common law for a couple of millennia.

JASTA amends FSIA, permitting U.S. courts to exercise jurisdiction over foreign nations, regardless of designation.

In his veto message, Obama intoned manifold concerns about JASTA.

He cautioned against placing the authority to designate a terrorist state into the hands of judges, juries, and litigants.

Of course, judges, juries, and lawyers have been developing the common law for a couple of millennia. Interestingly, Obama seems to approve the U.S. Supreme Court defining fundamental legal categories, from personhood, to commerce, to speech. Is it really so troubling to imagine litigants performing discovery, evidence being evaluated in open court, and judges and juries reaching conclusions about the tortious conduct of nation-states? Are “national security and foreign policy professionals” the only persons capable of defining terrorism?

But Obama further warned: “[JASTA] could lead to suits against the United States or U.S. officials… [And litigants] would begin to look to the assets of the U.S. Government held abroad.”

So, if we let victims of terrorism sue foreign governments, foreigners might start suing the U.S. government in foreign courts.

Yes, indeed.

By exempting nations and state officials from liability, there is no deterrence from future wrongdoing.

Obama further insisted that the U.S. has already taken actions to safeguard national security, and to provide “financial compensation for [9/11] victims and their families.”

On September 28, Congress voted – by an overwhelming, bipartisan margin – to override Obama’s veto.

Rex Non Potest Peccare

Sovereign immunity is the gentlemen’s agreement of nation states. It is an ancient maxim sustained on the principle that the “king can do no wrong.”

Exempting state officials from legal responsibility traces deep into Western history. As early as the 13th century, the crown of England was held immune from civil suit.

Yet, the doctrine appears nowhere in the U.S. Constitution, and some scholars argue that it is wholly inconsistent with the basic nature of America’s government. In 1776, the British colonies of North America felt compelled to submit a detailed list of grievances against the crown, as their basis for complete separation. We got rid of monarchy, ended royal prerogative, said no government official is above the law, and declared the people sovereign.

The Declaration of Independence represents the tipping point of sovereign immunity.

Liability Deters Wrongdoing

By exempting nations and state officials from liability, there is no deterrence from future wrongdoing, and injured parties receive no compensation.

Unless, of course, the wrong-doing nations voluntarily compensate injured parties, or voluntarily alter, or mitigate the tortious conduct. Obama assures us that the U.S. government will safeguard America from future terrorism, and will provide financial assistance for victims and their families.

Holding Nazis accountable represented a departure from old norms on state sovereign immunity. Why stop there?

Or, the wrong-doing nation might be ostracized by the world community, have its immunity torn away, and be forced to pay for its crimes.

JASTA is not necessary to sue a designated state-sponsor of terror. The list of designees was first issued in 1979, and has never included Saudi Arabia. It has, however, included Libya, Cuba, South Yemen, North Korea, Iraq, Syria, Iran, and Sudan. The latter three are the only current designees, after Cuba was removed last year.

Consider also the Third Reich. Recall that the war criminals of that squalid regime enjoyed no refuge from the long arm of Nuremberg. And while it has taken 70 years (and there is still work to be done), dozens of nations have permitted private parties to seek restitution for, or return of artifacts plundered by the Nazis; even if it means seeking redress from collectors who acquired stolen art from the Nazis.

Sovereign nations have been committing similar crimes for centuries. Just stroll through the Lourve, or the British Museum. But holding Nazis accountable represented a departure from old norms on state sovereign immunity.

Why stop there?

Reparations for Slavery

In August, a U.N. working group issued a report finding that the U.S. government must pay reparations for American slavery.

Slavery was an atrocious crime against humanity, on a scale arguably no less horrific than the Holocaust. Surely, one must resist the comfortable retort that slavery was a long time ago, and therefore let’s all move on.

Still, the reparations argument raises issues of fairness and equity.

First, slavery was a worldwide institution for thousands of years. Governmental compensation paid to American slave-descendants would set a bewildering precedent. For instance, what will be the statute of limitations? Shall descendants of former Roman slaves seek redress from the European Union, as the natural heir to the Roman government?

Also, as Walter E. Williams insists, the victims and perpetrators of American slavery are all deceased. The U.N. group seems to imply that the U.S. government stands in the shoes of the perpetrators. Yet, the only financial means available to the U.S. government is tax revenue. No current taxpayer is a former slaveholder. While some may be descendants of former slaveholders, they are mostly the descendants of non-slaveholders, and post-Civil War immigrants.

How is it “justice” to hold current taxpayers financially accountable? Are current taxpayers one in the same as the U.S. government and responsible for all its actions, past and present?

Perhaps.

But, then, to what extent is the U.S. government (or the average taxpayer) entitled to offset this financial culpability? In addition to steps taken to undo the social damage of slavery (e.g., Civil Rights legislation), hundreds of thousands paid a blood ransom to stop slavery during the Civil War, and to redeem the unfulfilled promises of the Constitution for African slaves.

In fairness, perhaps the U.S. government should also pay wrongful death compensation to the descendants of non-slaveholding Civil War soldiers, who died to end slavery?

If we elect politicians who devastate foreign nations, perhaps we should be financially exposed to foreign lawsuits.

The People Are Sovereign

Vital questions of justice are raised by the reparations debate. Unfortunately, there was no Nuremberg after Appomattox. Former slaveholders never faced prosecution. And most slavery-related monetary gains are no longer extant. As Williams and other economists have noted, the South was quite poor compared to the Industrial North. A significant basis of Southern “wealth” was in property, and in the “value” of the slaves themselves.

President Obama opposes reparations, but supports governmental “investment” aimed at undoing the social legacy of slavery. This is rather consistent with his view that 9/11 victims can be monetarily compensated through federal grants and assistance, without allowing them to sue foreign nations like Saudi Arabia.

Still, the Constitution holds the people to be sovereign. If individuals face legal responsibility for their actions, why should government officials be immune? And while it’s debatable whether they should be financially responsible for slavery, if current taxpayers choose to elect politicians who devastate foreign nations, perhaps we should be financially exposed to foreign lawsuits. Perhaps our government officials should be exposed, as well.

Maybe this will deter ill-advised foreign policies, and the ill-advised electoral decisions of taxpayers.

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