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Thread: Justice Against Sponsors of Terrorist Act

  1. #1
    A Self Important Senior Contributor troung's Avatar
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    03 Aug 03

    Justice Against Sponsors of Terrorist Act

    Time to invest more in fracking.
    Will Saudis seek revenge for Congress' veto override?

    By David A. Andelman

    Updated 0104 GMT (0904 HKT) September 29, 2016
    Obama: Override of 9/11 bill veto a mistake

    On Wednesday, Congress overrode President Obama's veto and approved the Justice Against Sponsors of Terrorist Act
    While Congress has now given 9/11 victims the right to sue Saudi Arabia on the claim that it provided support to the terrorists, David Andelman writes this legislation may come at a high cost

    "David A. Andelman, editor emeritus of World Policy Journal and member of the board of contributors of USA Today, is the author of "A Shattered Peace: Versailles 1919 and the Price We Pay Today." Follow him on Twitter @DavidAndelman. The views expressed in this commentary are his own. "

    (CNN)Once upon a time, there was a kingdom where the ruling family called the American president by his first name and where the royals' every demand was met unquestioningly in the interest of mutual profit and security in a most insecure region.
    Its safety was guaranteed by the United States, which helped equip it with its own weapons so that the King and his consorts could rest with hardly a care in the world. In turn, this kingdom -- Saudi Arabia -- supplied America with a reliable and unending supply of cheap oil, and served as an unbending ally in a region where alliances can be very fickle indeed.

    Today, that dream came to an abrupt and painful end. With Congress overriding President Obama's veto and approving overwhelmingly the Justice Against Sponsors of Terrorist Act, suddenly Saudi Arabia could be facing a very long and expensive legal battle in the very uncertain venue of America's courts. Congress has given the right now to victims of 9/11 to sue the kingdom on the theory, denied by the Saudis, that people connected to the Saudi government may have provided support to the terrorists who rained down death on their loved ones.
    But there is a broader subtext to this legislation. The kingdom can no longer count on the United States and -- a far more dangerous reality -- may no longer even want to. With a single vote, Congress may well have brought down on America a host of plagues many on Capitol Hill may only vaguely appreciate.

    First, there's the money. While Congress just approved, with some apparent reluctance, $1.5 billion in arms sales to Saudi Arabia, Britain has sold the Saudis more than $7 billion worth of arms plus some 72 advanced Eurofighter Typhoon aircraft, which will be worth another $5.8 billion when they're delivered. France has an ongoing arms sales program to Saudi Arabia worth some $12 billion, including 23 advanced Airbus H145 helicopters. Any shift of large weapons purchases from the United States could cost large numbers of American workers their jobs.
    While Saudi Arabia is still the largest purchaser of arms from the United States, not far behind are the United Arab Emirates and Turkey. And the United States has problems with each that today's vote will do little to improve.

    Saudi Arabia and the United Arab Emirates are both overwhelmingly Sunni nations. A slap at one is a slap at both. And the UAE accounts for 20% of all arms exports to the Middle East, just behind Saudi Arabia's 23%. For years, British, French and German arms manufacturers have lobbied, at times with some success, to join the party in a big way. Now, Congress has given each of our competitors a new marketing pitch.
    All this is taking place in an increasingly tense environment and with the United States in a tenuous position. The leadership of Turkey, the third-largest purchaser of American arms in the region, is especially irked at what it sees as the cavalier manner in which Washington has dismissed its request to extradite an opposition cleric who's taken refuge in the Pennsylvania Poconos and who Ankara wants back to face charges, which he denies, that he orchestrated an aborted coup this summer.
    And every Sunni nation is still smarting over the leadership role of the Obama administration in concluding a deal with Iran that returned billions of dollars to this Shiite nation in return for what is seen in most Sunni capitals as a vague pledge to shelve its program of developing a nuclear arsenal.
    Congress releases secret '28 pages' on alleged Saudi 9/11 ties
    '28 pages': Congress releases report on alleged Saudi 9/11 ties
    But there is another more immediate impact that could hit every American's pocketbook directly. At the very moment Congress began tallying the vote on JASTA, oil ministers of OPEC were said to be on the cusp of cutting a deal to curb oil production in an effort to raise oil prices.
    WTI crude on the NYMEX exchange surged 5.4% to $47.10 a barrel, as soon as this report hit the wires, with gasoline and heating oil prices rising in lockstep. In days, prices at the pump could begin to surge as well, and with the winter heating oil season just around the bend. No such OPEC agreement would be possible or enforceable without a Saudi buy-in. And the United States is in a poor bargaining position to urge restraint on the kingdom today.
    Above all, though, the United States needs Saudi Arabia most immediately and pressingly to deal with ISIS. The Islamic State is very much a Sunni entity, and it is quite clear that more radical Sunni elements in Saudi Arabia have played a role in its rise and that of al Qaeda before it.
    American officials have long relied on Saudi rulers to hold such activities in check, while at the same time providing forces that can help contain ISIS expansion on the ground and in the air. The Saudi air force has joined U.S.-led bombing strikes on ISIS strongholds, and should a major ground offensive materialize, the Saudi's Sunni troops could be most effective partners.
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    Our only hope is that the Saudis are wise enough to avoid the risk of impairing their own financial or strategic health to indulge themselves in political revenge. But Congress has certainly given the kingdom every reason to rebel.

    David A. Andelman, editor emeritus of World Policy Journal and member of the board of contributors of USA Today, is the author of "A Shattered Peace: Versailles 1919 and the Price We Pay Today." Follow him on Twitter @DavidAndelman. The views expressed in this commentary are his own.
    To sit down with these men and deal with them as the representatives of an enlightened and civilized people is to deride ones own dignity and to invite the disaster of their treachery - General Matthew Ridgway

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    A Self Important Senior Contributor troung's Avatar
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    03 Aug 03
    Justice Against Sponsors of Terrorism Act: Initial Analysis
    By Ingrid Wuerth
    Thursday, September 29, 2016, 2:19 PM


    Congress has overridden President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). JASTA has been rightly criticized by other commentators (for example here and here); my purpose here is to analyze several of its important features and to raise some questions about how they will be interpreted.

    JASTA creates a cause of action against foreign states for injury occurring in the United States caused by an act of international terrorism in the United States and by a “tortious act or acts of the foreign state,” regardless of where the tortious act by the foreign state occurred. It creates the cause of action by first providing that a foreign state has no immunity from such claims and then by providing that a national of the United States may bring a claim against a foreign state in accordance with 18 U.S.C. § 2333 if that state is not immune under JASTA, notwithstanding 18 U.S.C. § 2337(2). This cause of action is created through an amendment to the Foreign Sovereign Immunities Act (the new 28 U.S.C. § 1605B).

    JASTA also creates a cause against persons by amending 18 U.S.C. § 2333 to include a claim for aiding and abetting an act of international terrorism committed, planned, or organized by an organization designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

    Section 2, the provision directed at foreign states, is relatively narrow, at least as compared to earlier versions of the legislation, but it is applicable beyond the 9/11 terrorist attacks and the potential responsibility of Saudi Arabia. Victims of terrorist attacks in the United States now have a financial incentive to try to link any such attack to the reckless or intentional actions of a foreign state, even when those actions occur in other countries.

    Collecting on any JASTA judgment may be difficult, however. The immunity of foreign states from the execution of judgments is protected by different sections of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1609-1611, which are not amended by JASTA. The FSIA does provide some specific methods of enforcing judgments against state sponsors of terrorism (governed by FSIA 1605A), such as § 1610(a)(7) and (b)(2), but these measures will not be available under the new JASTA section, FSIA § 1605B. There are other possible ways to execute against assets of foreign states (including their agencies and instrumentalities) under FSIA, but they are framed narrowly and are likely inapplicable. Congress might well act to provide new enforcement measures should victims prevail against Saudi Arabia under JASTA, but that means that Congress gets a second look at potential foreign relations harm before any such judgment is enforced.

    Of course, the Obama administration asserts that significant foreign relations harms may result even aside from any efforts at enforcement (the veto message is here)—by, for example, exposing the U.S. government and U.S. officials to suits in other countries or by allowing for discovery against foreign states. The Supreme Court upheld broad discovery under the FSIA in a post-judgment execution action against Argentina in 2014, over the objection of the U.S. government.

    Section 5 of JASTA also includes what appears to be an unprecedented “Stay of Actions Pending State Negotiations.” Section 5 provides that courts may grant a 180-day stay if the Secretary of State certifies that the U.S. is engaged in good faith discussions to resolve the claims against the foreign state and if DOJ chooses to intervene and to submit the certification to the court. The court must grant 180-day extension(s) upon re-certification by the State Department (again on petition of the DOJ), which leaves open the possibility of very long-term stays (the italics are mine). The statute apparently leaves to the courts’ discretion whether to grant a stay at all, but no discretion as to granting an extension. The statute provides no guidance as to what factors a court should consider in whether or not to grant an initial stay.

    Courts have sometimes used the political question and international comity doctrines to achieve somewhat similar results in holocaust-related cases, which the Clinton administration ultimately resolved through executive agreements with Germany and other countries. See, for example, the Ungaro-Benages case, 379 F.3d 1227 (11th Cir. 2004). International comity has also been used to somewhat similar effect in other factual contexts. For example, see the Pravin Bank Associates case, 109 F.3d 850 (2nd Cir. 1997), in which the district initially granted a stay but refused to extend it because an extension would have been inconsistent with U.S. policy. Seen from this perspective, the statute codifies a power similar to one that courts have exercised at times in the past, which is arguably salutary because the judicial power to stay the litigation will be statutorily conferred rather than a matter of federal common law. The statute also requires a formal process for making the U.S. government’s position known to the courts, thereby providing some internal executive branch checks on the State Department’s ability to influence the litigation through a stay. It is unclear whether the Section 5 language divests the courts of the power to apply international comity and other common law doctrines if the Section 5 requirements are not met.

    The Stay of Action language in Section 5 is also arguably an implicit endorsement of the President’s claim settlement power. What if the “discussions” referred to in Section 5 lead to a sole executive agreement and that agreement calls for the termination of the litigation? Section 5 says nothing about this possibility. The Supreme Court has upheld executive claim settlement agreements in several cases, including Dames & Moore and Garamendi; the agreements in those cases were not implemented through legislation. One might argue that by failing to state explicitly that a claim settlement agreement would be binding on the courts, Congress did not intend to authorize such power implicitly. A similar argument about the International Emergency Economic Powers Act failed to carry the day in Dames & Moore.

    Two concluding observations. First, the aiding and abetting language in the statute could generate litigation against individual foreign government officials. Cases against individuals do not come within the Foreign Sovereign Immunities Act, and there are significant constitutional questions about whether the U.S. government has the power to make immunity determinations binding on the courts, which I have addressed in other writing. The scope of foreign official immunity is an unsettled issue in international law as well.

    Second, Section 2 of JASTA includes a finding that appears to go to personal jurisdiction. It finds that “persons, entities, or countries” that contribute material support to acts of terrorism against U.S. nationals “should reasonably anticipate being brought to court in the United States to answer for such activities.” An earlier version of JASTA included substantive language about personal jurisdiction, so maybe this finding originally related to that earlier language. The language applies well beyond the new causes of action created by JASTA as actually adopted, but perhaps it is designed to shape what can be “reasonably anticipated” as a matter of due process in terrorism cases beyond JASTA. It is not clear what effect, if any, congressional findings such as this should have on courts’ analysis of due process. The language also applies to “countries,” although lower courts have held that foreign states have no due process rights, so that there is no constitutional bar to exercising jurisdiction over them.

    JASTA will generate significant litigation. That litigation, and the statue itself, has put aspects of U.S. foreign policy under the overlapping control of Congress, courts, executive the branch, and private litigants.
    To sit down with these men and deal with them as the representatives of an enlightened and civilized people is to deride ones own dignity and to invite the disaster of their treachery - General Matthew Ridgway

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    A Self Important Senior Contributor troung's Avatar
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    03 Aug 03
    Think tanks, their writers, and newspapers who give them oped space should have to register as foreign lobbyists.
    Don’t Blame ‘Wahhabism’ for Terrorism


    LONDON — The word “Wahhabism” has become a boogeyman in the West, deemed responsible for the radicalization of Muslims around the world. And since Wahhabism is a strain of Islam that has its origins in the Arabian Peninsula and is the dominant religious doctrine of Saudi Arabia, that country is often viewed as the prime culprit in the propagation of violent extremism.

    But blaming Wahhabism and Saudi Arabia for Islamist radicalism is a dangerous red herring. This single-cause explanation distracts from the complex political, economic and psychological reasons people join terrorist groups. In doing so, it impedes our ability to effectively fight terrorism.

    Wahhabism is, in fact, a loaded, anti-Saudi synonym for Salafism, a puritanical strain of Islam that encourages emulating the “salaf,” or predecessors, the first followers of the Prophet Muhammad. Salafism has historically been apolitical and the overwhelming majority of Salafis are not violent.

    Most Islamist militants have nothing to do with Saudi Wahhabism. The Taliban, for example, are Deobandis, a revivalist, anti-imperialist strain of Islam that emerged as a reaction to British colonialism in South Asia. Most members of Al Qaeda follow a radical current that emerged from the Muslim Brotherhood, a movement that defined itself largely in relation and opposition to the West and its values. While some terrorists do identify as Salafi, Islamic sects that are ideologically opposed to Salafism — Naqshbandi Sufis and Shiites, among others — have engaged in violent jihad in Iraq, Afghanistan and Syria.

    And yet much of the Western news media and far too many pundits put forward a different picture entirely, pinning the blame for terrorism on Wahhabi ideology emanating from Saudi Arabia. These arguments lead one to imagine that European terrorists end up joining the Islamic State by wandering the streets of Paris or Brussels and stumbling upon a Saudi-funded mosque. In this mosque, they read a single book, “The Book of Monotheism,” by Muhammad ibn Abdul-Wahhab, the 18th-century sheikh who founded Wahhabism. A week later, the book’s fundamentalist message inspires them to travel to Syria’s front lines or to plot terrorist attacks in Europe.

    The reality is much more complex. Most of the perpetrators of terrorist attacks in Europe have been petty criminals who were known to drink alcohol and take drugs. Their radicalization has little to do with theology. Some European Muslims reportedly purchased books like “Islam for Dummies” before embarking on journeys to take part in jihad in Syria. What they all have in common is a belief that the Muslim world and the West are locked in an irreconcilable clash of civilizations.

    It is similarly inaccurate to condemn Wahhabism or Saudi Salafism for the jihadist groups that have emerged in the Arab world in recent years. Tunisians account for the largest foreign population in the Islamic State. The group’s top ranks emerged from Iraq. Syria, of course, is a hotbed of jihadists of all stripes. And yet, these countries until recently were ruled by secular dictators, who banned Saudi missionary activities and, in the case of Iraq and Syria, viewed Saudi Arabia as an adversary.

    On the other hand, Saudi Arabia has been engaged in missionary activities in India, building mosques, schools and social service centers. And yet barely any jihadists have emerged from among India’s population of more than 170 million Muslims.

    The revival of a politicized form of radical Islam, which has been taking place in the Arab world since the 1970s, is not driven just by ideology, but by the failure of Arab governments to meet the expectations of their own populations and the brutal reprisals they have employed to quell demands for better, more transparent governance. Like the social and psychological alienation that drives some European Muslims to join extremist groups, this root cause must be addressed in order to truly fight terrorism.

    There is no doubt that while certain strains of Salafism are intolerant, intolerance does not necessarily lead to terrorism. Ideological intolerance is a problem in its own right, one that carries risks and dangers and requires its own treatments. But conflating its dangers with the causes of violent extremism can diminish the effectiveness of serious counterterrorism efforts.

    It is Saudi Arabia — the country accused of promoting ideas that lead to violent extremism — that has effectively harnessed religion to fight radicalism. Saudi Arabia has fought Al Qaeda not only operationally, but also by countering its ideology with religious arguments. Scholars have been mobilized to condemn both terrorist acts and rhetoric. Salafi scholars have been instrumental in the success of the rehabilitation programs for those convicted of aiding and abetting terrorism.

    In the 1990s, Saudi Arabia’s grand mufti, Abdul Aziz ibn Baz, issued a fatwa condemning suicide operations. The current grand mufti, Abdul Aziz bin Abdullah al-Sheikh, is also on record advocating against Saudis’ joining groups fighting overseas and, in keeping with traditional Salafi teachings, has called on all Muslims to remain obedient to the legitimate leader’s dictates and avoid any form of organized political activism.

    Blaming Wahhabism or Salafism for violent radicalism is not merely an intellectual slip or an injustice to Salafis, it is a distortion that stands to obstruct fighting violent radicalism and understanding its causes. Any religious ideology adopted by radicals is often a mask for other issues. Blaming or even destroying an ideology like Salafism will not end radicalism.

    Mohammed Alyahya is a nonresident fellow at the Atlantic Council.
    Last edited by TopHatter; 20 Oct 16, at 20:17.
    To sit down with these men and deal with them as the representatives of an enlightened and civilized people is to deride ones own dignity and to invite the disaster of their treachery - General Matthew Ridgway

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