How Congress made it easier to sue Israel

When the House and Senate voted to override President Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), they intended the act to allow lawsuits against foreign sponsors of terrorism. Most expected it to spur lawsuits by American victims of 9/11 against Saudi Arabia.

Yet much to the surprise and dismay of those who supported it, JASTA’s first application is against Israel. 

{mosads}Attorney Martin McMahon invoked JASTA to take on Israeli Prime Minister Benjamin Netanyahu in a complaint filed on Feb. 1 in the U.S. District Court for the District of Columbia. Other defendants include Ehud Barak and Avigdor Lieberman, both officials with the Israeli Ministry of Defense.

According to the complaint, “Financing, encouraging, or participating in war crimes [genocide and ethnic cleansing] fits within the definition of ‘international terrorism. By promoting, participating in, or funding international terrorism, all defendants have also violated the recently enacted statute known as Justice Against Sponsors of Terrorist Act.”

Using JASTA to sue American allies like Israel was not the scenario JASTA’s supporters envisioned. Most simply supported the act out of fear of having to defend a “no” vote in an election year when such a vote could be construed as supporting terrorists over American victims. But even in a worst case scenario, they hoped it would merely be an annoyance to countries like Saudi Arabia.

However, JASTA’s critics warned it would damage bilateral relations and disrupt traditions of international law, just as it is now starting to do. For generations nations have been immune from lawsuits in courts of other nations. The underlying principle is that countries should not use their own courts to litigate against other countries. 

While narrow exceptions exist allowing lawsuits in commercial, personal injury, or treaty contexts, or when the President labels a nation a state sponsor of terrorism, the core tenant remains—neutral, international bodies provide superior venues for bilateral disputes.

The President must have the authority to conduct American foreign policy taking into account government intelligence and long-term foreign policy strategic interests. JASTA sets all of that aside in favor of a patchwork of different court decisions about individual foreign governments and their role in terrorism. The result is ridiculous, counterproductive lawsuits like the most recent one against Israel, a staunch American ally. 

Offending our allies is not the only risk with JASTA. It will encourage other nations to sue the United States in their own courts as well. Already a group called the Arab Project in Iraq asked the country’s parliament to bring a lawsuit against the U.S. over the 2003 invasion. It is easy to imagine charges by Palestinian allies that the U.S. sponsors terror through its financial and military support of Israel. Or, perhaps, that the U.S. sponsors terror through its support of Syrian rebels.

Across the globe Americans constantly conduct foreign activity—diplomatic, economic, and military—and JASTA would be subject the United States to dramatically more lawsuits in foreign courts than other nations. Our relatively deep pockets also make the United States a particularly attractive target. Should these foreign litigants win judgments against the U.S. — based on their own foreign domestic laws as applied by their own foreign courts — they would look to assets of the U.S. held abroad to satisfy those judgments. In short, the United States has reciprocal self-interest in upholding international immunity.

Private lawsuits are a terrible forum, both here and abroad, for resolving complex foreign policy issues. International diplomacy and international organizations provide a far superior avenue to achieving worthwhile resolution. 

Unfortunately, Mr. McMahon’s suit against Israeli leaders under JASTA is merely the tip of the iceberg. Other American litigants will be emboldened to insert themselves in American foreign policy, and other nations will feel liberated to set aside the international immunity principle and target lawsuits at America with renewed vigor.

With a new administration and a fresh view of JASTA’s true application, Congress should reconsider and repeal JASTA. The 9/11 attacks and other acts of terrorism since then deserve a strong and forceful American response, but it is a foolish and dangerous mistake to believe that JASTA will best address the country’s past losses or protect American interests in the future.

Joshua Claybourn is Counsel at Jackson Kelly PLLC. In his legal practice he advises corporations, governmental entities, and elected officials on a wide range of issues, including regulatory compliance and economic development.

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