Why JASTA Is Good
On September 28, Congress voted to override President Obama’s veto of a bill that allows relatives of the victims of the 9/11 terrorist attacks to sue Saudi Arabia for any role in the plot. The Senate defeated the veto by a 97-1 vote, then the House voted 348-77 to override the veto hours later. Therefore, the Justice Against Sponsors of Terrorism Act, or JASTA, is now a law. The bill passed both houses of Congress without objection earlier in 2016.
It was the first veto override of Obama’s presidency, and the first since 2008. Under Article I, Section 7, Clauses 2-3 of the United States Constitution, Congress may override a presidential veto by a two-thirds majority vote in both the House and the Senate.
Although no member of Congress spoke out against JASTA during the override procedure, Obama has argued that the law sets a dangerous precedent. It grants an exception to the legal principle of sovereign immunity, which could be a double-edged sword if other countries pass reciprocating legislation. This could expose American corporations, diplomats, politicians, and soldiers to lawsuits for their conduct overseas. This caused CIA Director John Brennan to warn that JASTA had “grave implications” for national security. Additionally, 28 senators signed a letter expressing reservations about the potential that JASTA will cause the United States to be sued in foreign courts “as a result of important military or intelligence activities.”
Why JASTA is Good
While the national security statists are scared of what Pandora’s box might have just been opened, this is excellent news for libertarians. This is because it chips away at the anti-libertarian idea of sovereign immunity, could give victims of American foreign policy a peaceful means of addressing their grievances, and could reveal clandestine activities to the American people about which they have a need to know.
Sovereign immunity is the legal doctrine by which the state can do no wrong and is immune from civil suit or criminal prosecution. It is the ultimate manifestation of the fact that government will not hold government accountable because it is against the rational self-interest of those who wield state power. With the ability to grant immunity to themselves, government agents can engage with impunity in activities which are criminalized for the commoner, and they do so on an enormous scale. A double standard of this sort could never be tolerated in a libertarian social order. In a free society, the standard would have to be that actions which are criminal for one person are criminal for another. Wearing a costume and claiming affiliation with a government would be meaningless. For example, just as taxation is robbery, slavery, receiving stolen monies, transporting stolen monies, and conspiracy if private citizens behave identically to government tax collectors, so would a libertarian private court prosecute tax collectors. JASTA and potential reciprocating legislation does not go nearly far enough in this sense, but it is a potential first step toward more justice for the crimes of government personnel.
Speaking of crimes of government personnel, the American military and the civilians who preside over it have committed a great number of them. Since the end of World War II, American foreign policy has caused between 20 million and 30 million deaths. Economic sanctions have contributed to this death toll, while impoverishing many people who have survived and generally failing to achieve their stated objectives. These multitudes of victims deserve justice. With sovereign immunity in place, there is no forum in which they may seek judicial relief. Making peaceful dispute resolution impossible makes violent dispute resolution inevitable, so some people wronged by the United States government decide to seek vengeance in the form of joining terrorist groups to attack innocent Americans in retaliation for their losses. While such acts cannot be morally defended, they are certainly understandable. Reciprocation to JASTA provides a pathway to a more peaceful system of addressing grievances caused by American foreign policy. Even the possibility that Americans may be sued for their wrongful deeds overseas would create a chilling effect against bellicosity that libertarians should welcome.
As such cases begin, the discovery process of these lawsuits could make public certain activities being done in the name of all Americans which are currently unknown to the American people. While the civil religion of democratic statism should not be taken at face value, most people do, so it makes sense in context to have an informed electorate. The people cannot judge various military and intelligence operations if they never find out about them. With JASTA and reciprocating legislation, the newly possible lawsuits filed by foreigners victimized by Americans could serve to educate the American people on the nature of what is being done in their names. Even libertarians who oppose democracy should favor this result, as one cannot protest wrongs of which one remains ignorant.
Objections
JASTA could result in lawsuits for vicarious liability against civilian contractors who provide armaments and other equipment to people who are directly involved in foreign atrocities. This is a feature, not a bug. Knowingly providing a violent criminal institution with the means to victimize the innocent should be treated not only as a civil wrong, but as criminal behavior. Lawsuits against such parties could result in a chilling effect against providing the state with the means to perform its pernicious deeds, which would benefit the American people by weakening the state and resulting in less motivation for retaliatory terrorism against innocent Americans.
Because there is a condition of anarchy between sovereigns, there is no higher court whose judgments are binding and enforced across national boundaries. This means that citizens can sue foreign nation-states as they see fit, but winning a judgment offers no guarantee of payment because the foreign nation-state can simply ignore the court’s decision. This is true, but it does not diminish the indirect consequences of JASTA, which are the real reasons to support it.
Should such cases not be summarily dismissed, there is the potential for many thousands of cases to bog down the court system. But this can create a demand to privatize courts, or at least give more business to private arbitrators of disputes. Should the cases remain in government courts, it will take up time and resources which could otherwise be used to cause more harm to innocent Americans.
Finally, there is the concern that allowing such lawsuits will damage foreign relations after such judgments are ignored. This is also a feature rather than a bug, as the possibility of damage to foreign relations for denying claims for wrongdoing in foreign policy provides an incentive for governments to avoid committing so many atrocities overseas. A world in which citizens may sue foreign governments for damages is thus likely to be a more peaceful world.
Conclusion
Although one would be correct to be skeptical of any legislation that passes by such a wide margin, the likely secondary results of JASTA are intriguing and the fears of it are overblown. From a philosophical libertarian perspective, JASTA is clearly a net benefit.
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