Professor, School of Law, University of Reading
Member since June 23, 2016
Good morning, Fiona
Thank you for that latest email, and particularly for the Obama quote that succinctly summarises many of the key issues. I do think that the US will be exposed to even more liabilities for 'the work' it does around the world, even if those court cases are symbolic and unenforceable. Of course, the US has paid money to victims of drone strikes and other unintended consequences of its 'work' around the world, and by doing so has accepted some liability or responsibility. There are many people who feel strongly that the US ought to be held accountable, legally and/or politically, and perhaps JASTA will lead to similar legislation elsewhere that will provide for 'lawfare' cases (ones brought for advocacy or political purposes rather than because there is any hope of winning or enforcing them).
Apologies for the lateness of my reply; it's been a very busy day.
The JASTA is an extremely interesting development. As I am sure you know, it was largely introduced with one particular law suit in mind--a suit against Saudi Arabia in respect of the 9/11 attacks--but of course it has a far broader scope than just this.
For me, the most interesting thing about this from a counter-terrorism perspective is that the passage of this law illustrates just how complex the question of 'justice' is in the CT context. On the one hand, one might argue that quite a lot has been done by means of 'retribution' (not necessarily the same as justice, of course) for the attacks, from armed conflict in Iraq and Afghanistan to criminal trials in the US and the assassination of Osama Bin Laden. However, the passage of JASTA suggests that these kinds of activities are not conceptualised as 'justice' by victims of terrorism and their families. Or at least not as being sufficient in terms of justice. Instead, there seems to be a sense that all those involved in supporting activities that crystallise into terrorist attacks causing injury and death should be accountable for that involvement, even if it produces serious concerns about the broader consequences of that for inter-state relations, for example.
Quite apart from this question of what constitutes 'justice' in such circumstances, perhaps the most intriguing thing about JASTA from a counter-terrorism perspective is the scope of its potential application. The Act is not written specifically for 9/11-related suits, rather it might apply anytime there is a US plaintiff who suffers harm as a result of the actions of acts of 'international terrorism'. This is the case even if the state in question is not listed by the US as a state sponsor of terrorism. Designated state sponsors are already liable to suit in the US, but this is limited only to states that are so designated by the US itself. JASTA opens this out enormously to any state that a plaintiff claims has sufficiently abetted or conspired in the activity in question. Thus--and this is a fundamental basis of the President's veto--JASTA removes the capacity to 'balance' the demands of 'justice' for victims of terrorism with the diplomatic, foreign affairs, and US-liability costs of lifting immunity from a 'state sponsor' of terrorism from the Government and puts it into the hands of courts, although the Secretary of State can indefinitely postpone the judgment.
This last point is an important one: the version of JASTA that was passed is really unlikely to be at all useful. The plaintiff must establish that the state was directly responsible for the act of terrorism on U.S. soil, and we can expect that a court will demand a very high standard of proof of this. Even if they succeed, the secretary of state can postpone the judgment. Even if s/he doesn't, there is no way to enforce the judgment! So it does rather cause one to wonder whether JASTA as passed advances 'justice' in any kind of meaningful way at all.
Given your expertise on the UN and inter-state relations, do you share the concern of President Obama that JASTA really just makes the US vulnerable to similar laws elsewhere being passed and to deterioration of diplomatic relationships, or do you think this objection is largely hot air (much, perhaps, like the Act itself!)
Dinner and a night away from the laptop sounds good, Fiona. Happy to pick this up again tomorrow morning -- I will email at whatever ungodly hour I wake and return to the laptop.
Oh, Fiona, the more that we email the gloomier I feel about the whole 'walking-off-a-bridge-with-eyes-closed' car crash that is looming if Trump gains power through this election.
Just tidying up my emails and getting ready for the weekend. I think we have covered more ground about the elections in these emails than I have done in countless face-to-face conversations over recent months. There is little doubt that we will both be up all night watching the results on 8th November, and I hope we will continue these discussions by email or Twitter on that night.
For now, fingers and toes are crossed that the polls start to swing in Clinton's direction. The remainder of my day will be spent keeping a close eye on the UN Human Rights Council, where the erosion of international human rights law has picked up significant pace over the past 12 months. From one area of doom-and-gloom to another, but thus is the life that we have chosen in our respective fields of research and expertise!
Thank you for the informative and intelligent discussion, for the very interesting links to articles, and for being willing to engage on some tricky and delicate issues.
All the very best from a rather sunny London.
Good morning, Professor
Since we last spoke about Brexit a lot has changed and a lot has changed (Prime Minister, cabinet, safety of European citizens in the UK, the weather) but no-one has yet pushed the big red button that will start the process of us leaving the EU.
It seems rather anticlimactic, and also somewhat farcical. The Guardian newspaper has a weekly Brexit roundup and the other broadsheets do report on the discussions in Europe (which mainly seem to be calls for us to hurry up and trigger Article 50). But the tabloids that were so desperate for us to vote leave have now largely gone quiet about the topic -- instead BrexPitt (Brad and Angelina splitting) has taken over the front pages.
So, do you think we will ever leave?
Ah, but Prof, the nature of our relationship always has been me asking you for predictions because you do know the right answers. I would call you Mystic Egg, if I was not so scared of your scoldy reaction!
So much of the Brexit debate across the media has been distilled into (a) economics and (b) nationalism. Do you think there are any other key factors in play? (My vote had little to do with either of those factors, but then again I do tend to march to the beat of my own drum too frequently.)
I agree that Brexit offers no solutions. But what does 'remain' offer? In universities, it is clear that we will be poorer (not just financially) if Article 50 is triggered. But who else will suffer other than the intelligensia and the financial services industry? Have we yet made the case -- culturally, politically, and in other ways -- for remaining in the European Union? We are struggling to do so, as are the Germans, the French, and the Italians, let alone the newer members in Eastern Europe. The economy and/or the threat of another Cold War are not sufficient to convince many people that it is worth their while to remain part of the EU. So, Oracle, what can we do?
Yours, as ever