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Privatized Diplomacy

President Obama speaking at an outdoor podium in front of a row of American flags,
President Obama speaking at the 15th anniversary of 9/11 commemoration ceremony in Arlington, Va.
Photo by EJ Hersom, courtesy the Department of Defense.

Thanks largely to the loyalty of Sen. Harry Reid and his fellow Democrats, President Obama almost managed to become the first president in a generation to avoid having Congress override a single one of his vetoes.

Party loyalty has limits, however. Especially for senators who – unlike the president – still need to face voters in the future, and even more especially for New York’s Charles Schumer, who is in line to follow Reid as his party’s Senate leader and who would like to lead a majority rather than Reid’s minority.

This largely explains how Reid yesterday became the only senator on either side of the aisle who voted to sustain Obama’s veto of a particularly ill-advised piece of election season legislation that will give terrorism victims unusual powers to sue foreign governments in U.S. courts, regardless of the implications for our national interests or the unfairness to other victims of foreign offenses, such as hostage-taking.

The Senate voted 97-1 to override Obama’s veto of the Justice Against the Sponsors of Terrorism Act. A few hours later, the House likewise voted in favor of override by a 340-77 margin, clearing the Constitution’s requirement of a two-thirds majority. It was the first of Obama’s 12 vetoes to be overturned and prevented Obama from becoming the first president since Lyndon Johnson to escape an override.

For the most part Obama has not needed to veto legislation, because his own party controlled Congress during his first two years in office and because Reid and other Democrats still had enough Senate votes during the remainder of Obama’s term to bottle up bills they opposed and keep them from reaching the president’s desk.

But the measure to restrict sovereign immunity and allow private actions against foreign governments was strongly backed by families of 9/11 victims, and it mainly targeted Saudi Arabia, whose nationals provided most of the manpower for the four hijackings that led to that day’s carnage. In a hotly contested election season, rational arguments against the bill and its politically favored advocates stood little chance of success, regardless of their merits.

The Saudis have a lot to answer for in their own conduct before 9/11 and, to a lesser extent, since. Riyadh funded a network of religious schools, known as madrassas, that promoted the Saudis’ strict Wahhabi religious views across much of the Islamic world; a number of those schools were petri dishes for the development of violent extremism in such places as Pakistan and Indonesia. Those countries were often themselves targets, as were other nations in the West and elsewhere. Private Saudi funds also helped support the al-Qaida organization of Osama bin Laden, who was himself a Saudi national in de facto exile. But no investigation has demonstrated any official Saudi government complicity in the 9/11 attacks themselves. Even with the newly enacted American legislation, plaintiffs and their lawyers will face a heavy lift if their cases make it to trial.

So why not let the families of 9/11 victims have their day in court, which is all the bill’s backers say they are seeking?

For the same reason we don’t give someone who is run over by an accredited foreign diplomat the chance to sue that diplomat and his government for injuries or wrongful death. Sovereign immunity for national governments is a cousin of diplomatic immunity for their representatives, and it exists for the same reason: because nations interact with one another on a government-to-government basis, often on the basis of give-and-take in which specific claims are compromised in favor of broader objectives. These relationships can be disrupted by comparatively petty private claims or individuals, regardless of their own legal merits. It is better to compensate our own damaged citizens, if we choose, than to let them pursue claims for personal benefit at the expense of larger imperatives.

With our global reach and diverse strategic goals, America and its citizens benefit from these principles as much as anyone, and more than most. Consider an example: A missile fired from a U.S. drone kills a wanted terrorist hiding in a compound in Pakistan, but also kills the child of an innocent neighbor who happens to be there at the time. Do we want that neighbor to be able to sue the United States in a Pakistani court, win a judgment, and impound American-owned supplies and equipment transiting Pakistan to support our troops in Afghanistan in satisfaction of that court ruling? If our citizens can sue a foreign government for death that rains out of the sky on innocent civilians, why can’t theirs? And why would Pakistanis not feel entitled to take legal action against, say, a specific CIA operative stationed at our local embassy who might have been involved in identifying that missile’s target?

These are the considerations that Obama weighed when he vetoed the bill, and these are the considerations that Congress ignored when it voted to override.

If there is anything to be happy about in yesterday’s action, it is that there probably won’t be many more like it. The House is scheduled to recess at the end of this week, and the Senate plans to follow soon afterward. The best way to stop ill-advised, feel-good legislation from getting passed in an election season is to get the people who hope to benefit from passing it as far from the Capitol as possible.

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One Response to "Privatized Diplomacy"

  • Henry Stimpson
    September 30, 2016 - 11:18 am

    Nice blog Larry – I agree entirely!