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Obama’s filing against 9/11 families: so bad it’s good
<strong>Bizarre amicus brief totally demolishes the Second Circuit's
dismissal of the families' suit, then replaces it with the most mendacious
stupidity imaginable. Now the Supreme Court will HAVE to hear the case, just to
avoid the implication that it accepted this garbage.</strong>
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9/11 families were stunned this week to learn that President Obama is <a href="http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=99832">asking</a>
the Supreme Court NOT to review their effort to recover damages from the
government of Saudia Arabia and from several Saudi princes for funding al
Qaeda’s 9/11 attack on America. That the defendants did funnel vast sums of
money to al Qaeda was accepted as a given by the appellate court, as was the
fact that al Qaeda was known to be dedicated to and engaged in violent attacks
against America. So what was the Obama administration’s reason for siding with
the Saudis?
Solicitor General Elena Kagan’s <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/05/08-640-federal-insurance-co-usac-petition.pdf">amicus
brief</a> to the Supreme Court had to admit that the Second Circuit Court of
Appeals erred in its grounds for denying the suit against the Saudi princes. No,
the fact that the princes did not actually direct the al Qaeda attack on the
United States does not relieve them of liability for attacks that they funded.
The precedent on this is clear. As long as the defendant knew “that the brunt of
the injury” from his tortious act would be felt in America, then:<blockquote>...
he must ‘reasonably anticipate being haled into court there’ to answer for his
actions. [<em>Calder v. Jones</em>, 465 U.S. 783, 790. Cited on Kagan’s p.
18.]</blockquote>Nevertheless, said Kagan, she could think of a way around the
appellate court’s utter failure to get the heart of the case right. The
families’ suit falls under the 1976 <a href="http://caselaw.lp.findlaw.com/casecode/uscodes/28/parts/iv/chapters/97/sections/section_1605.html">FSIA</a>
law that establishes exceptions to the principle of sovereign immunity. This law
does not allow jury trials. Thus while the appellate court was clearly wrong to
say that the suit should not be heard, Kagan suggests that there are snippets in
the ruling that can be read as the appellate court acting in its role of trier
of fact, and thus ruling against the families for providing insufficient
evidence.
In other words, instead of seeing the Second Circuit as rejecting the basis of
the suit, we should see them as accepting the suit, and ruling against it on the
substance. To make her argument that the appellate court actually did try the
facts, she quotes the Second Circuit’s statement that: <blockquote>Conclusory
allegations that [Prince Turki] donated money to charities, without specific
factual allegations that he knew they were funneling money to terrorists, do not
suffice.</blockquote>But of course the families DID marshal reasons why Turki
could be expected to know that his donations were going to al Qaeda, as
indicated by the appellate court’s further statements that there was no personal
jurisdiction even if the defendants did “know that their money would be diverted
to al Qaeda,” or were “aware of Osama bin Laden’s public announcements of jihad
against the United States.” (Cited in the families' <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/02/08-640_cert_rep.pdf">reply
brief</a>, p.8, and in <a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/05/08-640-federal-insurance-co-usac-petition.pdf">Kagan’s
brief</a>, p. 19, respectively.)
For Kagan to pretend that the Second Circuit acted as a sufficient trier of
fact, when it explicitly asserted that the facts don’t matter, is just an
attempt to mislead the Court. The evidence that the Saudi Princes knew they were
funding al Qaeda has yet to be considered by U.S. courts, even though Kagan
herself admits that if they did know, they should be held liable.
<strong>The families respond</strong>
Of course the families are <a href="http://twincities.bizjournals.com/twincities/prnewswire/press_releases/national/District_of_Columbia/2009/05/29/DC24790">angry</a>
that Obama is blocking their access to the courts, despite their legitimate
claims under U.S. law:<blockquote>The Administration's filing mocks our system
of justice and strikes a blow against the public's right to know the facts about
who financed and supported the murder of 3,000 innocent people. It undermines
our fight against terrorism and suggests a green light to terrorist sympathizers
the world over that they can send money to al Qaeda without having to worry that
they will be held accountable in the U.S. Courts for the atrocities that result.
…
The Administration's filing is all the more troubling in that it expressly
acknowledges that the courts below applied incorrect legal standards in
dismissing the Saudi defendants, but nonetheless argues that the case -- one
that seeks to account for the terrorist attacks against America and the murder
of our family members -- does not warrant the Supreme Court's time.</blockquote>This
at the same time as Obama insists that al Qaeda operatives held at Guantanamo
Bay <a href="http://www.cnn.com/2009/POLITICS/01/22/guantanamo.order/index.html">must</a>
be granted access to U.S. courts. Concocted rights for terrorists, yes.
Following the law for the victims of terrorism, no.
<strong>On Saudi state liability, Kagan again misleads to the point of outright
dishonesty</strong>
Here too, Kagan is forced to start out by noting that the grounds on which the
Second Circuit Court of Appeals dismissed the families’ claims is not valid. The
circuit court held that damages for terrorist acts have to be brought under the
FSIA law’s special exception for terrorist acts, which requires that the state
defendant be designated by the State Department as a terror supporting state.
Since Saudi Arabia has not been so designated, suit cannot be brought under this
provision, end of case.
Wrong, as Kagan herself explains:<blockquote>Congress’s concern was not to
impose new limits on the domestic tort exception, but instead to expand
jurisdiction to cover a narrow class of claims based on conduct abroad. See, <em>e.g.</em>,
H.R. Rep. No. 702, 103d Cong., 2d Sess. 3, 5 (1994) (explaining that the bill
would “expand” jurisdiction to include claims by an American who is grievously
mistreated abroad by a foreign government”).</blockquote>This was necessary
because the domestic tort exception only applies to injuries that occur on U.S.
territory. Specifically, the domestic exception allows suit when:<blockquote><a
href="http://caselaw.lp.findlaw.com/casecode/uscodes/28/parts/iv/chapters/97/sections/section_1605.html">1605(a)(5)</a>
- money damages are sought against a foreign state for personal injury or death,
or damage to or loss of property, occurring in the United States and caused by
the tortious act or omission of that foreign state.</blockquote>In the wake of
the Iranian hostage taking in Tehran, Congress wanted designated
terror-supporting states to be liable for harms that they inflict on Americans
even on their own territory, but this in no way was supposed to limit suit over
harms that occur within the United States, such as the 9/11 murders.
Confronted with this obviously wrong ruling by the Second Circuit, Kagan again
tries to cobble together an alternative grounds for granting Saudi immunity. To
fullfill this improbable command from above, she decides to flat-out <em>lie</em>
about precedent, big bald astounding lies.
<strong>Torturing "tortious"</strong>
Notice that the language of the domestic tort exception is perfectly clear that
what has to occur inside the United States is the personal injury or death, not
the decision that leads to the personal injury or death. Suppose that the home
office of a state owned shipping company decides to scrimp on safety equipment
for its cargo vessels, leading to loss of American lives when cargo is offloaded
in an American port. This is exactly the kind of thing that FSIA was intended to
cover, but Kagan pretends otherwise, arguing that not only the tort (the harm),
but also the “tortious act or omission” that creates the harm, have to take
place inside the United States.
In many cases there is no separation between the harm and the act that creates
it. They both occupy the same time and place. Neither does the language of torts
typically distinguish between the tort and the tortious act. Instead, the
tortious act is seen as being realized when the tort (the harm) actually occurs.
Kagan's ploy is to try to make a distinction between the tort and the "tortious
act" that leads to it, and she is able to come up with some out-of-context
references to make it sound as if precedent demands that both the harm and the
decision-making that leads to the harm have to occur here in America.
She claims, for instance, that:<blockquote>In <em>Amerada Hess</em>, the Court
considered and rejected the argument that domestic effects of a foreign state’s
conduct abroad satisfy the exception. 488 U.S. at 441.</blockquote>Applied to
the current case, she is clearly suggesting that the “domestic effect”
corresponds to the 9/11 attacks, and that the “conduct abroad” corresponds to
the statutorily required “tortuous act or omission” that in both cases took
place outside of U.S. territory. A look at the actual Supreme Court ruling,
however, shows this to be a gross misrepresentation of <em>Ameranda Hess</em>.
Looking up <em><a href="http://supreme.justia.com/us/488/428/case.html">Argentine
Republic v. Amerada Hess Shipping Corp.</a> </em> and turning to p. 441 we find
what the case was actually about:<blockquote>In this case, the injury to
respondents' ship occurred on the high seas some 5,000 miles off the nearest
shores of the United States. Despite these telling facts, respondents
nonetheless claim that the tortious attack on the Hercules occurred "in the
United States."</blockquote>In other words, it was the harm itself that in this
case did not occur within U.S. territory. Contrary to Kagan’s representation,
the Court was NOT making a distinction between the harm and decision that led to
it and claiming that both had to occur within the United States.
This kind of blatant misrepresentation of precedent is lawlessness! Is this how
the Obama administration treats precedent? As fodder for utterly dishonest word
games? YES.
<strong>To preserve its own reputation, SCOTUS will <em>have</em> to hear the
families’ case</strong>
The Supreme Court asked the Obama administration to submit this brief. It cannot
be ignored. If SCOTUS accepts guidance from this contemptuous document, then it
is implicated in the Obama administration’s contempt for the law.
If the sheer perversity of Kagan’s filing does force the Court to hear the
families’ case, that would be a great outcome, but the downside risk is equally
amplified. If the Court DOES accept Kagan’s guidance, it is a black black day
for America.
Meretricious cites and arguments dominate every paragraph of Kagan’s brief,
except in two place: where she shoots down the Second Circuit’s patently errant
grounds for dismissal. It almost seems like she started with a brief in support
of the families’ suit before getting the order from Obama to side with the
Saudis. Apparently she decided that it was fruitless to try to support the
Second Circuit’s reasoning, so she let the demolition of the Second Circuit’s
ruling stand, then supplied her own just as bad case for Saudi immunity.
However it came about, Kagan’s destruction of the Second Circuit ruling is so
competent, and her substitute arguments for immunity so <em>in</em>competent,
that the whole almost seems designed to force a Supreme Court hearing. Could she
have intentionally sabotaged her own brief? Doubtful, given that the Obama DOJ
just overruled its own career lawyers in order to drop an <a href="http://michellemalkin.com/2009/06/05/the-us-department-of-injustice/">already
won</a> case against three New Black Panthers who were caught on tape using
weapons to intimidate voters. Apparently the Obama administration just really is
this stupid and malicious.
In any case, it seems unlikely that Kagan’s shenanigans will get past the
justices. Antonin Scalia is unlikely to forget the FISA case <a href="http://www.law.cornell.edu/supct/html/91-763.ZO.html">opinion</a>
he wrote in 1992, addressing the very question of harms resulting in the United
States from decisions made by foreign entities in their home countries. His
conclusion? In a breach of contract case where the only tie to the United States
was the option of receiving payment in dollars in New York City, the Court
denied immunity. Only the harm itself had to take place on U.S. territory, not
the decisions that led to the harm, and the opinion was <em>unanimous</em>.
<strong>Obama’s imperial presidency: he does not want to be bound by the 1976
Foreign Sovereign Immunity Act, and says so</strong>
The family group <a href="http://twincities.bizjournals.com/twincities/prnewswire/press_releases/national/District_of_Columbia/2009/05/29/DC24790">states</a>
directly that:<blockquote>The filing was political in nature and stands as a
betrayal of everyone who lost a loved one or was injured on September 11,
2001.</blockquote>Indeed, the entire first section of Kagan’s brief is replete
with claims that exceptions to sovereign immunity <em>should</em> be determined
politically.
That is the way it used to be, before Congress passed the FSIA act <a href="http://travel.state.gov/law/info/judicial/judicial_693.html">specifically</a>
in order to take these determinations out of the political realm. The United
States only started granting any exceptions to the legal tradition of sovereign
immunity in the 1950's, after some nation-states started getting heavily
involved in commerce. If state enterprises could not be held liable in U.S.
courts, they would have a competitive advantage over private industry. Not smart
policy during the cold-war contest between capitalism and communism.
Exceptions were at first made on a case by case basis by the executive, but such
arbitrariness does not suit the needs of commerce, so Congress made an explicit
decision to take this power away from the executive. Even so, Kagan’s brief
hints over and over (<a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/05/08-640-federal-insurance-co-usac-petition.pdf">p.
4-10</a>) that executive prerogative should still hold sway, but without ever
making an explicit case that FSIA intrudes on the inherent powers of the
presidency, and without ever stating what the president would want to do with
those powers in the present case if the court were to recognize them as
pre-eminent.
The reason Kagan doesn’t make these things explicit is because they are damning.
Obama knows that the Saudi’s are liable under U.S. law, but for his own
political reasons he does not want them to be held liable, but neither does want
the nation to understand that he considers currying favor with the people who
attacked us on 9/11 to be more important than justice for his own murdered
countrymen.
The president does indeed have some inherent power here, just as President Bush
had inherent power to wiretap conversations with al Qaeda operatives both at
home and abroad, regardless of what Congress put in the FISA wiretapping law.
Bush <em>did</em> abide by FISA, but he didn’t <em>have</em> to.*
Obama is going further. He does not want to abide by FSIA, but is unwilling to
make the case that the particular exemption from FSIA that he is asking for is a
legitimate exercise of his inherent powers, or even assert what he would do with
that power. He just wants the courts to do his dirty work for him, asking them
to grant immunity to the Saudis based on bogus claims about FSIA law and
precedent.
Conservative justices might be tempted to recognize the president’s inherent
powers in the area of foreign policy, but they should not let him exercise this
power on false pretenses. If he wants to claim that he has the inherent power to
grant immunity to the Saudis and that this is how he wants to exercise that
power, he can do it publicly, but he should not be allowed to overrule Congress
on the pretense that he is doing the will of Congress.
To allow this subterfuge would destroy fundamental FSIA precedents while failing
to attain the virtue of the pre-FSIA regime, where the president had to stand or
fall by his explicitly political decision-making. If Obama wants to invoke the
inherent power of the presidency here, he at the very least has to be willing to
admit it.
<strong>* FISA court precedent on inherent powers</strong>
The powers of Congress to regulate in an area where the president has his own
inherent authority was <a href="http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html">addressed</a>
by the FISA court in September 2002:<blockquote>The <em>Truong</em> court, as
did all the other courts to have decided the issue, held that the President did
have inherent authority to conduct warrantless searches to obtain foreign
intelligence information. It was incumbent upon the court, therefore, to
determine the boundaries of that constitutional authority in the case before it.
We take for granted that the President does have that authority and, assuming
that is so, FISA could not encroach on the President’s constitutional power.</blockquote>The
contrast to the present case is instructive. Bush’s Solicitor General Ted Olson
did not hide the fact that President Bush wanted the court to recognize his
inherent authority to conduct signals intelligence. With that power duly
recognized, Bush still went the last mile to conform to the law as enacted by
Congress. That is what it means to “<a href="http://www.breitbart.com/article.php?id=CNG.bd0713f4765981d1edbe5b522ce08354.3e1&show_article=1">uphold
our fundamental principles and values</a>,” while Obama, who keeps accusing
President Bush of failing to uphold our values, engages in legal subterfuge,
showing as much contempt for the law as for our 9/11 families.
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