As Obama's solicitor general, Supreme Court nominee Elena Kagan urged the Court to dismiss the suit that our 9/11 families have been pressing against the Saudi government and several Saudi princes for their extensive funding of al Qaeda. The families sued
under the domestic tort exception to sovereign immunity, which according to Kagan's Supreme Court brief (at p. 14
requires not merely that the foreign state’s extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5).
The "tortious act or omission" is the wrongful act (the tort) that leads to the injury. Thus she is claiming that for Saudi funding of al Qaeda to be actionable, the funding itself has to have been transacted within the United States. Compare this with the actual wording of 28 U.S.C. 1605(a)(5)
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – ... (5) ... in which 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 or of any official or employee of that foreign state while acting within the scope of his office or employment..."
Contrary to Kagan's assertion, the law only specifies that the injury
has to have occurred within the United States. Not a word about the wrongful act that leads to domestic injury also having to have taken place within the United. Kagan flat lied about the clear wording of a law that goes to the very heart of our ability to use the courts to combat Islamic terrorism, and thanks to the Court's failure to review this crucial case, the simple wording and intent of Congress—that foreign states whose actions do injury in the United States can be sued for those injuries—has now been undone, as if the law had never been passed.
"Oops!... I did it again"
Kagan proves that her lie was self conscious by also lying about the relevant Supreme Court precedent, claiming (again at p. 14
In Amerada Hess 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.
In fact, the Court in Amerada
never considered "the domestic effects of a foreign state's conduct abroad" at all
, for the simple reason that there were no domestic injuries in that case. The injuries occurred outside of U.S. territory, which is why the domestic tort exception was held not to apply. Here are the simple facts, as recounted in Justice Rehnquist's majority opinion (joined by Brennan, White, Stevens, O'Connor, Scalia and Kennedy):
... 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." [At p. 440.]
The Amerada Company ship was attacked at sea. Since the tortious act and the damages from it both occurred "5,000 miles off the nearest shores," the Court did not bother to distinguish between the wrongful act and the injuries from it. Kagan uses this to claim that the Court found Amerada's domestic injuries to be unrecoverable, when in fact the Supremes agreed with the district court that there were no
domestic injuries (p. 439-441
Has any solicitor general ever flat lied to the Supreme Court before? Isn't any lawyer who unambiguously lies to the Court about the simple facts of a cited holding subject to disbarment for unethical behavior? And she did it for an unethical purpose: to help the financiers of 9/11 escape justice. Any moral person would either resign in the face of such a job assignment, or would limit himself to making what honest arguments could be mustered. This moral pervert chose to lie and ought to be busted out of the profession for it, not promoted to the highest court in the land.
Obama favors a legal response to terror while working to pull the law's teeth
Obama has long been a proponent of shifting from a military response to Islamic terrorism to a civilian/criminal law response. Putting the terrorists in jail is supposedly more effective shooting them on the battlefield. This is why Attorney General Eric Holder decided to try Khalid Sheikh Mohammad in New York City. There is supposedly nothing Mohammad wants less than a public platform for crowing that America must submit or die, while credibly demanding that we must either reveal our intelligence secrets or let him go free.
It is an insane idea, seeking to move the fight against Islamic terror to an arena that disarms us and empowers them, but even that isn't enough for Obama. He has to have his solicitor general lie to the Supreme Court for him in a way that guts what laws Congress has already passed for fighting terror in the courts. First he moves the fight to our relatively toothless courts, then he pulls what teeth the courts have.
If Obama's gutting of the legal fight against terror is intentional it means that he prefers America to have NO effective defense against Islamic terrorists (perhaps because they are his co-religionists
). Kagan's nomination to the Supreme Court is a clear indication of this intent. Obama is ratifying, in the strongest possible way, her gutting of the law, and like Kagan, he also proves intent by repetition, nominating Kagan's partner in crime, James Cole, to be his Deputy Attorney General.
Oops!... Obama does it again: DAG nominee also favors a legal response to terror while working to pull the law's teeth
Shortly after 9/11, Cole wrote
that, since the targets were primarily civilian, the 9/11 attacks should not be viewed as acts of war, but as violations of civilian law, to be combated through our civilian court system. If Cole really wanted to make the civilian courts our main line of defense against Islamic terrorism he would be for aggressive use of the courts in this fight, but in practice, he comes down on the other side, arguing as the lawyer for one of the implicated Saudi princes that the family suit to recover damages from the 9/11 attacks is invalid.
Cole's service to the Saudis creates "a direct conflict of interest
" writes Debra Burlingame:
In light of this history, it is impossible to fathom how Mr. Cole can ethically carry out his duties and responsibilities as the de facto head of the Justice Department while U.S. troops are fighting terrorists who receive funding and support from organizations associated with the Saudi government and their proxies. This is a direct conflict of interest. Given Saudi NGOs’ continued involvement in terrorist facilitation world-wide and their connection to the Saudi royal family, this conflict of interest will cripple Mr. Cole’s ability to ethically perform his duties as head of a department charged with investigating and prosecuting terrorist facilitators associated with or working for the Saudi government.
Yes well, to Obama, that's a feature, not a bug. Like Obama, Cole is against a military response to Islamic terror and
he is against a civilian court response. In sum, neither of them want the United States to fight on any front, but want us instead to appease and submit to Islamic terror.
Which is nothing new. Obama's entire Department of Justice is of the same stripe:
Attorney General Eric Holder says nine Obama appointees in the Justice Department have represented or advocated for terrorist detainees before joining the Justice Department. But he does not reveal any names beyond the two officials whose work has already been publicly reported. And all the lawyers, according to Holder, are eligible to work on general detainee matters, even if there are specific parts of some cases they cannot be involved in. [Byron York February 2010.]
Which is worse, the DOJ lawyers who defended terrorists pro bono
on the basis of shared contempt for America, or the DAG nominee who defends the financiers of terror for a share of their filthy lucre? "Why decide?" says Obama: "Hire 'em all!" So long as they are defenders of al Qaeda, its all good.
Why isn't Congress fighting back?
While Obama's terror-defending lawyers are determined to secure rights and civilian court appearances for Islamic terrorists who should be treated as criminal combatants under military justice, they are equally determined to prevent our 9/11 families from getting their
day in court, despite the clear intent of Congress that they should. It is time for Congress to start fighting back. The Supreme Court shamefully failed to review a blatant subversion of congressional intent on a crucial front of the war against terror, but Congress doesn't have to take it lying down.
How about passing a clarification to the domestic tort exception that explicitly renounces Kagan's attempt to gut the clear intent of the law? Just use the Senate hearings on Kagan's nomination (commencing this week) to expose her devastating lies to the Supreme Court and to agitate for a clarification of the law that would allow the families' suit to proceed. Kagan would be routed, and the destruction she has wreaked on our terror war efforts would be repaired, killing two dirty birds with one stone.