It’s odd that we side with President Obama as he is facing the first veto override of his term. Though the fact that the bill passed both the House and the Senate unanimously is a hint of its perniciousness.
The bill, called the Justice Against Sponsors of Terrorism Act (JASTA), would allow citizens who can convince a jury that they were victimized by terrorism to sue governments that they believe contributed to the terrorist acts. We agree with the high-minded reasons that both the Obama Administration and some of the Republicans’ best legal and foreign-policy minds put forth in illustrating the bill’s dangers: it undermines sovereign immunity, could prompt retaliatory lawfare from other countries, and could place Americans abroad at risk of being detained by countries where the divide between civil and criminal prosecution is not as clear as in America.
We also fret that—while we are not condoning our supposed allies like Saudi Arabia in creating the environment for and directly supporting attacks on the U.S.—subjecting more defendants to the whims of the U.S.’s tort system is not the definition of justice. Supporters of the bill reflexively cry that “it’s not about the money,” but we’re sure that the tort bar doesn’t see it that way.
The lawsuit industry undermines the U.S. economy every day via “jackpot justice,” in which it’s not that hard to employ emotionally-charged arguments to convince juries that some faceless, deep-pocket foreign defendant should pay up. The preponderance-of-the-evidence standard on such civil matters is a dangerous substitute to deal with complex issues that should be left to the international political process.
The bill, while not unconstitutional, violates the spirit of the American constitution’s visionary prohibition of Bills of Attainder and ex post facto laws. JASTA strikes us as a ham-handed attempt to scapegoat for imprecise reasons a defined boogeyman after the fact—a a sophisticated form of mob rule that these constitutional provisions were designed to deter.
Most bills that pass Congress unanimously are trivial, with the only down-side being wasted legislative resources. When they are not trivial, such laws almost always increase government and erode liberty, as the political class generally agrees on these values as opposed to their converses. Unanimous laws generally fit the pattern of benefiting from emotional resonance—as in the case of JASTA—and being seen as having little down-side.*
JASTA is not trivial and carries significant down-sides, though it does fit the general pattern of feel-good unanimous legislation and all of its ills.
*We would like to see a historian write a book on unanimously-passed legislation and the dissenters (like former Rep. Ron Paul (Tx.)) who have stood alone against them. Such a work would certainly be filled with anecdotes that would educate and often amuse political junkies.