While the huckster and the hurricane have kept us glued to our TV screens, a very important event has passed by with much too little attention: the passage of a bill that permits Americans to sue Saudi Arabia for the death and destruction of the World Trade Center bombings. It is called Justice Against Sponsors of Terrorism Act (JASTA). What makes this bi-partisan bill so important? Implicit in the Act is the belief that Americans can take legal action against governments but people from other countries will not or cannot reciprocate. I’d like to explain how short-sighted, dangerous, and distorted this reasoning is.
First, let’s review the facts. There was the 9/11 attack, planned and executed by Osama Bin Laden. There is no proof that the Saudi Arabian government participated in this terrorist operation. If they did, we might have taken the attack as an act of war; even the bellicose Bush administration didn’t do that. Second, there is the internationally shared legal doctrine of “sovereign immunity,” which says that “a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.” To date, the United States has agreed to this doctrine. Yet the Senate voted 97 to 1 and the House voted 348 to 77 to override President Obama’s veto of the bill.
And let’s remember that the right to sue is not the same as holding people and nations to account by bringing them to world tribunals for war crimes and crimes against humanity. This we can do.
Imagine what might happen if we really do abandon the doctrine of sovereign immunity. How, for example, would we respond to Vietnamese families, who grieve their dead as much as we do, if they decided to sue the United States for the millions of people the United States killed and maimed in a useless war? Would we accept the legitimacy of these legal claims? What about Iraq, where we began a war on the false premises of weapons of mass destruction, murdering thousands, destroying homes and public buildings, and, in the process, precipitating civil war? What about the relatives of those murdered—we call it “collateral damage”—during drone attacks. What about the relish that people around the world would take in seeking reparations—or a big payday—by suing the wealthy American government. The courts would be brought to a standstill by thousands of law suits and would be hard pressed to rule that the United States is different from other nations.
In short, the United States Congress has demonstrated both a clear double standard and an almost total absence of strategic foresight.
Beyond the strategic implications of JASTA, there is the symbolism: what it tells us about our society.
American society is destructively litigious. When Americans feel wronged, they sue. Why? To lash out, to punish, to get even. This is the biblical doctrine of “an eye for an eye.” But is there really solace and satisfaction in vengeance? Does that make up for our losses? Does it relieve our grief? Does it bring back our loved ones? I don’t think so. When there is injury and costs involved in caring for the injured, I am very much in favor of legal action. But death is another thing. Then we must mourn. We must come to terms with our losses, however terrible and however difficult. If possible, we mourn with others and, in that strange, awful twist of fate, grow closer through tragedy. But vengeance tends to divide and embitter. It leaves a sour taste in our mouths. It solves nothing. It makes a mockery of our belief in justice.
How about deterrence, the power of law suits to send a warning to those who would harm us? I have seen virtually no proof in the sociological literature that punishment deters criminals, no less terrorists. Let’s just dismiss this idea. It is a rationalization for our desire for revenge.
Then there is the profit motive. As the personal injury ads that pollute our TV screens tells us, there’s a potential gold mine out there. If we’re miserable, maybe we can feel a little better if we’ve got money to spend. There’s something to be proud of.
While our litigiousness tends to rot our society from within, our belief that America is different from other nations, that we are special and not subject to the same rules as others, does the same to our standing in the world. We believe with our whole hearts that America is the greatest nation on earth. And it’s true that our democratic ideals and the structure of our government are exceptional. But there are two problems with exceptionalism. First, we are in a period when the practice of democracy is strained. Wealthy people, supported by decisions like Citizen’s United, wield more power and have more privilege than at almost any time in our history. Voting rights are wantonly denied in many states. We are on the verge of becoming more a plutocracy than a democracy. Poverty remains extremely high. The presidential campaign—the symbolic centerpiece of democratic process—has people round the world horrified and repulsed.
We may still be one of the better places to live. People still flock to our shores in search of the American dream. But we are in a period of nativism, rejecting the very people who have made us strong. And our foreign policy, in the name of great ideals, has never been so pure. For centuries now, we have undermined regimes around the world when they do not agree with us or threaten our interests. We believe ourselves to be superior to others, and that superiority gives us the right to tell others what to do—not in the candid language of realistic self-interest but in the language of ‘making the world safe for democracy.’ We do this with a straight face, even as we support some of the world’s worst regimes. Here are a few: them Abdullah in Saudi Arabia, Marcos in the Philippines, Saddam Hussein, Franco in Spain, Papa Doc Duvalier in Haiti, Trujillo in the Dominican Republic, Batista in Cuba, and Pinochet in Peru. Apparently, America’s exceptional qualities give us this right. This is the second problem with exceptionalism.
Let’s return to my original premise: We cannot construct an ethical and strategically sound justification to sustain our own “sovereign immunity” while denying it to other peoples and nations. If we try, we will continue to undermine our own credibility, moral suasion, and international power.