Law allowing 9/11 families to sue Saudi Arabia “poses no risk of exposing U.S. service members to lawsuits in foreign courts”
By Brian P. McGlinchey
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.
False Argument Proves Effective
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. [UPDATE: In subsequent, exclusive reporting by 28Pages.org, three Marines who attended a January lobbying trip say organizers concealed Saudi sponsorship of the event from veterans and Congress alike.]
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.
Indeed, more than four full months after JASTA’s enactment, 28Pages.org is unaware of any material legislative developments on the issue in any foreign capitol. Meanwhile, it’s important to consider the possibility that the small handful of foreign officials who initially called for reciprocal legislation in the days after JASTA’s passage may have done so as a favor to the Saudi government.
Expert: Drone Argument is a “Red Herring”
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.”
Suit Against Israel: A False JASTA Alarm
On February 1, American attorney Martin McMahon gave anti-JASTA forces a new talking point when he filed a suit against, among others, Israeli Prime Minister Benjamin Netanyahu, various Israeli government officials, David Friedman—Trump’s selection for ambassador to Israel—and the Kushner Family Foundation, which is associated with the family of Trump son-in-law and advisor Jared Kushner. Notably, the Israeli government was not among the defendants.
The complaint alleges war crimes against Palestinians and, among many other laws, attempts to invoke JASTA. Opponents of the law promptly heralded the case as a validation of their warnings of unintended consequences.
Dodge reviewed the 103-page complaint for 28Pages.org and characterizes it as “long and rambling.”
“I’m not sure what it is really about, but it’s not about JASTA. JASTA only applies to foreign states, and none of the defendants is a foreign state. JASTA only applies to acts of terrorism in the United States, and no acts of terrorism in the United States are alleged,” says Dodge, who has served on the State Department’s Advisory Committee on International Law.
Bottom line: Just because a lawyer casually invokes JASTA in a complaint doesn’t mean the courts will give it any credence whatsoever or allow the case to proceed, and it certainly does not represent a validation of anti-JASTA rhetoric.
A Saudi PsyOp
Saudi Arabia’s veteran lobbying campaign is just the latest product of the kingdom’s enormous public influence apparatus; as of November, the kingdom had 14 lobbying firms advancing its agenda, and many of those entities, in turn, hire still more firms for the cause.
This campaign started with the creation of the false narrative about JASTA’s impact on veterans. That subset of the population wasn’t chosen at random: Lobbyists know that, given their high standing in American society, veterans are guaranteed to open doors on Capitol Hill and garner sympathy on Main Street.
The false narrative was likely polished by Qorvis, the U.S. public relations giant that oversees much of the monarchy’s efforts to mold opinion and steer policy. And, for months now, it’s been disseminated through dozens of smaller public relations firms in cities all across the country, and by individual centers of influence on the Qorvis payroll…through social media, face-to-face conversations, and ghost-written op-ed pieces in local papers.
By the time a veteran is presented with the alarming description of JASTA, it’s not coming from a Saudi prince or a PR executive in a shiny suit—it’s likely coming from fellow veterans.
Throw in the opportunity for a free trip to Washington to “protect” their fellow service members—with a stay at the Trump International and the chance to meet members of Congress who graciously welcome those who have served—and it’s easy to see why some veterans are making repeat excursions to D.C., unknowingly serving the Saudi monarchy.
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.
Saudi Motive: It Isn’t the Welfare of U.S. Service Members
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.
Fellow commission member John Lehman, a veteran who served as Secretary of the Navy in the Reagan administration, said, “Our report should never have been read as an exoneration of Saudi Arabia…there was an awful lot of participation by Saudi individuals in supporting the hijackers, and some of those people worked in the Saudi government.”
Twenty-eight pages from a 2002 congressional intelligence inquiry into 9/11, declassified last summer, document many indications of Saudi links to the hijackers, and, in a statement submitted for the 9/11 families’ and survivors’ case against Saudi Arabia, Kerrey said, “Evidence relating to the plausible involvement of possible Saudi government agents in the September 11th attacks has never been fully pursued.”
Through its all-out lobbying and public relations campaign against JASTA—which is now fraudulently exploiting the patriotism and good intentions of American veterans—Saudi Arabia clearly wants to keep it that way.
Brian McGlinchey is the founder and director of 28Pages.org—and a veteran who served in both the enlisted and officer ranks.