Wednesday, August 20, 2008

A Fateful Forgiveness

A little noted federal court ruling has found the enemies of the U.S. not guilty of knowingly attacking the U.S. Our feckless judiciary has handed the Islamists another legal victory, one which, given the employment of non-objective law, will be difficult to reverse.

A brief Wall Street Journal item caught my eye, "Court Rules Saudi Arabia Can't Be Held Liable for 9/11" (August 15), which reported that:

"A federal appeals court ruled that Saudi Arabia and four of its princes can't be held liable for the September 11 terrorist attacks even if they were aware that charitable donations to Muslim groups would be funneled to al-Qada.

"The 2nd U.S. Circuit Court of Appeals said the defendants were protected by sovereign immunity and the plaintiffs would need to prove that the princes engaged in intentional actions aimed at U.S. residents."
Other publications reported the decision, as well, such as Newsweek, the Associated Press, and the New York Post. Coverage has otherwise been negligible. The case has been dragging on since August 2002 when the lawsuit was first filed. According to a November 22, 2002 Wall Street Journal article:

"Brought by Charleston, S.C. plaintiffs lawyer Ronald L. Motley on behalf of 3,000 families of those who died and survivors of the attacks, the suit alleges that members of the Saudi royal family and other Saudi entities sponsored the attacks by financing terrorism through a global financial network. The lawsuit alleges racketeering, conspiracy, wrongful death and negligence."
Even if they were aware that the money the princes were donating to these alleged "charitable" Muslim groups was helping to fund al-Qada and its conspiracy to attack the U.S.? Since when is knowledge of the commission of a crime, or of an act of war, and one's conscious abetting of that crime or aggression with money donations, a measure of blamelessness and non-complicity?

If one merely supplied the guns and get-away car for a gang of bank robbers, and even had a role in recruiting the gang members, but did not actively take part in the robbery, a criminal court would charge one with aiding and abetting in the commission of a crime.

If one only suspected that the gang was planning a bank robbery, but still donated money, guns and cars, one could still be charged with aiding and abetting. Where, in the Saudi prince case, does the role of "reasonable suspicion" enter - that is, the princes' reasonable suspicion that their money was destined to pay killers to attack the U.S.?

What is the difference here except in the scale of the 9/11 "crime"?

In reality, there is no fundamental difference. The chief monkey wrench that obviates reason and logic is the U.S. Foreign Sovereign Immunities Act (FSIA) of 1976, on which the judges of the 2nd Circuit Court based their ruling. Congress amended it in 1996 to allow victims and survivors of terrorism to file tort suits against countries officially designated "state sponsors of terrorism."

The suit against the royal princes and Saudi Arabia (and, in the original suit, the Saudi American Bank) was probably inspired by the successful suit against Libya for the Pan Am 103 bombing over Lockerbie, Scotland, in 1988, which killed 270 people. (For the denouement of that sordid exercise in moral evasion, see the August 15 brief in The Wall Street Journal, "Settlement May Clear Way for Full U.S. Diplomatic Ties" and the details of that suit on the FindLaw site.)

The chief purpose of the FSIA, it seems, is to relieve Congress and the White House the burden of passing moral judgment on aggressor nations and also of the responsibility for acting on that judgment. It does hold responsible individuals representing foreign governments for actions that result in the deaths of and injuries to U.S. citizens, and specifies that such individuals and their actions by implication represent the actions of their governments. However, Congress simply passed the buck to the victims and survivors of those actions, permitting them to hire expensive lawyers and endure years of litigation in courts sinking into the swamp of unpredictable, non-objective, positivist law.

Here are the fundamentals overlooked or ignored by the court in this outrageous decision.

The Saudi princes who are defendants in the case are members of the ruling Saudi royal family. The Saudi royal family is the government of Saudi Arabia. Yes, there is a kind of legislature in Saudi Arabia, but it acts and speaks at the behest of and on the behalf of the Saudi royal family and its Wahhabist religious establishment. Neither it nor the judiciary, which enforces Sharia law, is independent of the central government - which is the Saudi ruling family. The particular princes party to the case cannot have been the only ones who made donations to the Muslim "charitable" groups that funnel money to al-Qada and other terrorist organizations; there are innumerable Saudi princes who form the upper caste of Saudi society and necessarily of the government. They are the government. They all represent and are answerable to the Saudi monarch, King Abdullah.

The Law.Com site on August 15 ran a much longer article on the decision.

"The 2nd U.S. Circuit Court of Appeals held that the Foreign Sovereign Immunities Act shields Saudi Arabia, its leaders, a Saudi banker and the Saudi High Commission for Relief to Bosnia and Herzegovina from suit in the United States. The plaintiffs were a collection of 9/11 victims and their families, as well as major insurance companies and property owners, including the Port Authority of New York and New Jersey.

"Second Circuit Judges Dennis Jacobs and Jose Cabranes and, sitting by designation, Eastern District of New York Judge Eric Vitaliano said the act 'most obviously' protects the Kingdom itself.

"But the circuit held for the first time that the act 'applies to individual officials of foreign governments in their official capacities,' a ruling that means immunity for Prince Salman bin Abdulaziz al-Saud, president of the commission; Crown Prince Sultan bin Abdulaziz al-Saud, chairman of the Supreme Council of Islamic Affairs; Prince Naif bin Abdulaziz al-Saud, interior minister; and Prince Turki al-Faisal bin Abdulaziz al-Saud, director of the Department of General Intelligence.

"In its ruling Thursday, the circuit upheld an opinion of the late Southern District of New York Judge Richard C. Casey that there was no personal jurisdiction over the four princes. In the court's 67-page decision, Jacobs said even if the princes were 'reckless in monitoring how their donations were spent, or could or did foresee that recipients of their donations would attack targets in the United States, that would be insufficient to ground the exercise of personal jurisdiction.'"
What is "sovereign immunity" but immunity of a government against judgment and reprisal by another government? If the princes were members of the royal government, would that not in fact implicate them, rather than protect them?

The mental gymnastics of the three 2nd Circuit Court judges that allowed them to dismiss the case ultimately led them to reach this bizarre conclusion:

"The court also found that none of the exceptions to sovereign immunity in the act apply, including the exception for state-sponsored terrorist acts in 28 U.S.C. §1605(a). The reason, Jacobs explained, was that Saudi Arabia has not been designated by the United States as a state sponsor of terror." [Italics mine.]
Also, the court found, the defendants were not "acting in their official capacity." Ergo, even though the defendants are known to have donated fortunes, through bogus "charity" organizations, to terrorist gangs that wage jihad against the U.S. and the West, they are blameless and outside the jurisdiction of U.S. courts.

The federal court, in a time of war, has consequently rejected the fact that Saudi Arabia is one of the belligerents waging that war against the U.S. It has been waging cultural war and economic jihad against it for years, in addition to enabling physical assaults by soldiers and weapons.

The August 15 Wall Street Journal article concluded:

"Lawsuits seeking billions of dollars in damages were filed by representatives, survivors and relatives of the victims [of the 9/11 attacks] against foreign governments, charities, financial institutions and individuals believed to have provided support to al-Qada. The plaintiffs claimed the defendants gave money to charities in order to funnel it to terrorist organizations behind the attacks on the World Trade Center and Pentagon."
Lawsuits are not the rational, proper way to deal with aggressors. The proper justice would have been immediate military retaliation against Saudi Arabia, Syria, Iran, and other Islamic regimes connected to the 9/11 attacks. (Daniel Pipes, Robert Spencer, Steve Emerson, and others have documented ample evidence of these countries' roles in the attacks.) Instead, the U.S. took action against mere intermediaries and minor enablers of the attacks: Iraq and Afghanistan. The "war on terror" would have lasted perhaps a month, had the U.S a rational, self-assertive foreign policy. Because it has not had one in decades, the "war" has gone on for eight years with no end of it in sight.

When Japan attacked Pearl Harbor in 1941, no lawyers representing the survivors and relatives of the victims filed a "wrongful death" suit in a U.S. court against the Japanese naval officers who planned and launched the attack. Nor did anyone seek to sue the Japanese government for monetary damages. Either idea would have been laughed at and contemptuously dismissed. The U.S. declared war on Japan, defeated it four years later, and occupied the country to ensure that such a government and the philosophy of conquest behind it never rose again.

Suppose the plaintiffs were able to prove hostile or belligerent intent against U.S. resident citizens, also known as the U.S. One assumes here that counsel for the plaintiffs had solid, incontestable proof of the defendants' contributions to a terrorist organization, a paper trail of their financial transactions; their intent would be immaterial and irrelevant; it is their actions that would be the basis of the plaintiffs' argument.

Then what? Suppose the princes were somehow arrested and taken into custody. Would that not be a declaration of war against Saudi Arabia, since they are implicitly or explicitly members of its government? The Saudis would be the first to make the claim. They would not recognize the princes as individuals charged with a capital crime, but as representatives of the government and the country.

Suppose instead the princes were somehow tried and found beyond the shadow of a doubt innocent of any knowledge that the money they donated to the Muslim "charity" organizations was being used to fund al-Qada. Suppose they were found to be absolutely blameless. Then what? Or, rather, so what? They would retain the status of being enemy aliens, for their government would still be responsible for waging a multifaceted war against the U.S.

But all these suppositions float in the rarified air of non-objective domestic and international law, where a dozen angels can dance on the head of a pin and Saudi sheiks can sue publishers and authors for depicting Mohammad in a good or bad light (thus violating one's sovereign immunity against censorship as ensured by the First Amendment to the Constitution). One must ask oneself if all the federal circuit court judges (in all, seven courts reached the same decision) know anything about Saudi Arabia other than what they have read in The New York Times or The Washington Post.

The Law.Com report quotes Judge Jacobs extensively from the circuit decision, for example, "construing that the meaning of the term 'agency' is any thing or person through which action is accomplished,' and "it is easily open enough to include senior members of a foreign state's government and secretariat."

Because a state 'cannot act except through individuals,' he said, 'the act-of-state doctrine precludes our courts from sitting in judgment 'on the acts of the government of another done within its own territory' including acts committed by individual officers of foreign governments.
That is, the princes could donate money while in Saudi Arabia, safely out of reach of American courts, even though the money is being used to attack the U.S. All the defendants in this case are "senior members" of the Saudi government, yet somehow they and their government are immune from reprisal, retaliation, or punishment.

As though to rub salt in the wounds of the plaintiffs, Jacobs went on with petulant arrogance to claim that

"...[t]he act made clear it 'did not delegate to victims, their counsel and the courts the responsibility of the executive branch to make American's foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim's claim for damages."
Yes, it is the responsibility of the executive branch to establish foreign policy. But, absent a foreign policy that asserts America's and its citizens' right to exist unmolested by foreign governments - a policy abandoned in degrees by our government over the course of half a century - what avenues of justice have been left to the victims and survivors of an attack on this country but to turn to the court system?

And when that judiciary abandons the citizens of this country to the mercies of Islamic jihadists - here and abroad - it leaves Americans no option but to resign themselves to being sacrificial animals with no right to self-defense, redress, or justice.


shahnawaz said...

great commentary.oil explored by westerners is nationalised by bedouins to get enough money so that one day there would be no one to explore oil.thus we would reach the rousseaun ideal of untouched nature better known as "the dark ages".don't know whom to blame:the sheiks or the soulless american govt?

Burgess Laughlin said...

> "don't know whom to blame:the sheiks or the soulless american govt?"

Blame those who made it possible--the theologians and secular philosophers.