By Curtis Bradley and Jack Goldsmith
April 22, 2016
THERE has been much debate about whether a bill advancing through Congress that aims to expose Saudi Arabia to lawsuits in American courts for its alleged connection to the 9/11 attacks would unduly harm diplomatic and economic relations between the two countries. But the bill’s potential for harm extends far beyond bilateral relations with one ally. It would also violate a core principle of international law, and it would jeopardize the effectiveness of American foreign aid and the legitimacy of the United States’ actions in the war on terrorism.
A nation’s immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.
No nation benefits more from this arrangement than the United States. It conducts far more diplomatic, economic and military activities abroad than any other nation. Were the sovereign immunity rule to weaken, the United States would be subject to many more lawsuits in foreign courts than any other nation and would become an attractive and high-profile target for politicized litigation designed to contest its foreign policy. For this reason, the United States has long resisted actions by other nations that would erode the international law of immunity.
Yet now Congress is considering doing just that. Although the precise wording is still being negotiated, the bill in question would create an exception to immunity from civil lawsuits for foreign nations accused of facilitating terrorist attacks in the United States. This would substantially narrow the immunity of foreign governments under American law, which currently allows for personal injury lawsuits against foreign governments only when the entire wrong of which they are accused occurs in the United States, and only when the act does not involve sensitive policy-oriented decisions. (A New Yorker can sue a foreign nation, for example, if one of its employees injures him in a traffic accident in Manhattan.)
To be sure, Congress has previously created exceptions to sovereign immunity from civil lawsuits for a small number of “state sponsors of terrorism.” (The Supreme Court on Wednesday upheld efforts to enforce large judgments against Iran under this exception.) The exception has been controversial and is almost certainly contrary to international law. The controversy has been muted, however, because the exception applies to only a few nations designated as bad actors by the executive branch, which takes into account foreign policy and related considerations in making the designations. (Tellingly, the list does not include Saudi Arabia.) The current proposed legislation, by contrast, would create a broad general exception to immunity, potentially applicable to any nation, which private plaintiffs could exploit without any filtering by the executive branch.
One important reason for granting immunity to foreign governments in American courts is, as the Supreme Court once explained, “reciprocal self-interest.” If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad.
It might appear that the United States has little to fear in lawsuits abroad for acts of terrorism akin to 9/11. But terrorism is often in the eye of the beholder, and reciprocity need not be precise. It is easy to imagine the United States being sued abroad as a result of the military and other foreign aid it gives to many nations. A great deal of behavior traceable to American financial and material support — for example, aid to Israel that is said to result in displacements or killings in the West Bank, or to United States-backed rebels who are accused of attacking civilians in Syria — might result in a lawsuit abroad for aiding and abetting terrorism.
The lawsuits would not end there. American airstrikes against Al Qaeda and associates, and against the Islamic State, are legally controversial abroad. Many see the targeting practices of the United States (especially those that result in civilian casualties) as a form of terrorism, or as violating equally important norms of international humanitarian law. Lawsuits about such matters by foreign plaintiffs in foreign courts would be politically and financially damaging, and could produce legal rulings about appropriate military action that are far different from the principles that the United States and its allies now embrace.
Some people may view heightened accountability for America’s controversial actions abroad as a benefit of the bill rather than a flaw. We doubt the bill’s sponsors see things that way. But in any event, civil lawsuits directed by plaintiffs’ lawyers in foreign courts will inevitably be politicized. Such private-controlled lawsuits are not the right forum — abroad or in the United States — for the development of international norms and accountability for actions by nations related to military and criminal affairs. Deliberations and scrutiny through international diplomacy and by international organizations better serve this role.
Congress has many options for increasing accountability for 9/11. It could directly provide additional compensation for the families of those killed and injured on 9/11, and it could investigate lingering questions about the attack itself. Delegating these important tasks to private plaintiffs and unelected federal courts is an all-too-familiar eschewal of congressional responsibility that will do significant harm to the United States in its many activities abroad.
Curtis Bradley is a law professor at Duke. Jack Goldsmith is a law professor at Harvard and a senior fellow at the Hoover Institution.