By Rene Sotolongo
September 11th, 2001. No one who witnessed the tragic events of that day, will ever forget. But for some, it is a day that robbed them of friends and of family. So what then of the families who lost loved ones on that tragic day? This is where our story begins.
For years, families of the victims of 9/11 have been seeking justice-and answers- through our court systems. But their efforts have been stymied by due process and sovereign immunity.
What many people do not know is that 15 of the 19 hijackers were, in fact, Saudi citizens. And according to the families of the victims of 9/11, the Saudi Government should be held accountable.
However, neither the United Sates government agencies nor the 9/11 Commission was able to find conclusive evidence to link Saudi Arabia to the September 11th attack. And thus, the attempt by the families to get legislation passed that would allow them to sue the Saudi government.
Their year’s-long attempt was successful. The families of the victims were able to get bipartisan support and pass legislation that would allow them to sue the Saudi government, thus ending sovereign immunity. President Obama vetoed the bill.
In an even more stunning turn of events, for the first time in Obama’s administration, his veto was overturned. The Justice Against Sponsors of Terrorism Act is now law.
But what does all of this mean, especially under the lens of national security?
At the risk of oversimplifying some truly complex issues in the law of civil procedure, here’s the issue. In passing the bill, Congress was amending a law called the Foreign Sovereign Immunities Act.
That law says you can’t sue a foreign government in U.S. courts, except for a few specific exceptions, such as when the foreign government is engaged in U.S. commerce.
The terrorism bill added a new exception. It says that an American can sue a foreign government for damages “occurring in the United States and caused by an act of international terrorism in the United States; and a tortious act or acts of the foreign state … regardless of where the tortious act or acts of the foreign state occurred.”
Translated into English, that means you now can sue a foreign government when the act of terrorism occurred in the U.S.
And this is a problem, and it sets a dangerous precedent for quite a few reasons.
Given our tenuous relationships with most countries in the Middle East, we can expect some severe repercussions following the passing of this law. In fact, Saudi Arabia and the United Arab Emirates have already hinted as much.
For example, the United States has Status of Forces Agreements (SOFA) with Nations all over the world. In a SOFA, the rights and privileges of our military personnel present in a host country are established.
What now can we expect of our host nations? Reciprocal lawsuits abroad are practically guaranteed. More importantly, it would subject our service members to “retaliatory” actions by foreign governments.
In short, this would become an international game of “tit-for-tat.” Families here sue a foreign government. That foreign government takes service members into custody on trumped up charges and then holds those service members as bargaining chips.
Don’t think it can happen? Just look at the recent incident with Iran. Soon after, they took five Americans into custody, including Washington Post reporter Jason Rezaian. It just so happens that while these individuals were in custody, “Implementation Day” (January 16, 2016) for the nuclear deal between the United States and Iran took place.
That same day, the Obama administration announced a prisoner swap between the U.S. and Iran, in which we traded seven Iranian criminals and removed another 14 from an Interpol “most wanted” list. In exchange, Iran returned our four innocent Americans, illegally held by the Iranian regime.
Soon after their release, Iran received a payment of $400 million. Of course, the Obama administration adamantly denied that this payment was a ransom. But delivering $400 million in cash via an unmarked aircraft is highly unusual.
These events underscore and highlight what can and has happened.
Now let’s take it a step further.
Under current SOFA’s, when a service member is taken into custody by foreign officials they are normally turned over to their Chain of Command for discipline or prosecution. Given the changes this new law puts into place; we can reasonably expect that custody turnovers would no longer happen.
Instead, our U.S. service members would now be subject to Foreign courts. And in many countries, you are held in custody until your case is tried and your disposition is determined.
Now imagine what that service member could be subjected to in a foreign prison. Now imagine that the aforementioned Foreign Government sends in operatives to pry military secrets from these service members while they are in prison.
And, what if these service members are specifically targeted and “arrested” for this very purpose?
Now let’s take it another step further. Assume a service member is involved in a court case. It would now be up to a Foreign Court to decide whether or not classified U.S. government information is required for the trial.
How could the U.S. government claim Sovereign Immunity or refuse to release classified information under such circumstances, given the passing of this new law?
Ultimately, this will lead to a game of Brinkmanship. All the while, our service members would be caught in the middle. Just like what happened when Iran took United States Navy sailors into custody.
How coincidental that the “arrest” of the sailors came during a particularly delicate moment during the tense American-Iranian negotiations. In fact, it was just days before the nuclear deal was to be formally carried out. And part of the negotiations was the United States was supposed to unfreeze about $100 billion in Iranian assets.
While no one would deny the families of the victims of 9/11 justice, passing this law is simply not the way to do it. The ramifications and retaliation abroad would be far too great a risk. Not just to our National Security, but even more so to our brave service men and women serving abroad.
Rene C. Sotolongo is an OpsLens Contributor and a retired U.S. Navy Chief Petty Officer who served for over twenty years as an Information Systems official. Sotolongo also specialized in homeland security and counterterrorism.