The Doctrine of "Sovereign Immunity" Presents a Grave Danger to Our Security

Today, at the Aspen Institue Ideas Festival a deeply knowledgeable panel discussing "Global Insurgency" included former secretary of Homeland Security Michael Chertoff, Representative Jane Harman, General (Ret.) Jack Keane, and member of the president's Intelligence Advisory Board Mike McConnell with Slate columnist Fred Kaplan as moderator. The panel ruminated on the nation's preparedness against future attack . It was a sobering discussion about the ambitions of radical Islam to bring massive destruction to the United States and the West in general. Perhaps the most ominous comment coming from the panel was that, as matters now stand, there is a consensus within the intelligence community that a weapon of mass destruction will be released (biological agents, chemical attack, or nuclear detonation) within the next five years. That our ability to deal with this threat has improved, but is still far from the level that it might be were the government doing all that it could. To paraphrase a comment made during the discussion attributed to Sidney Harman, a trustee of the Institute, "Ironically we are armed with an analog capability fighting against an enemy astute in cutting edge digital technology, aiming to bring us back to the 12th century"

Given the grim procrastinations, it seems singularly incongruous that a branch of our government is oblivious or impotent to this present and grave threat to the nation's safety. Just the other day the Supreme Court, in its wisdom or lack thereof, upheld the ruling of a lower court ruling that four Saudi princes and Saudi Arabia are immune from 9-11 litigation that would have held them accountable for their alleged actions in assisting Al-Qaeda. The immunity is extended to them not because they are perceived as being innocent of the issues raised in the lawsuits by families of the 9-11 victims. No, but rather the doctrine of "Sovereign Immunity" makes them inaccessible to justice in American courts.

This raises the very troubling question that if "Sovereign Immunity" applies and is extended to Saudi princes, how can we effectively deal with the issue of terrorism. It would mean a tier of engaged protagonists would be permitted to function as instigators and supporters of terrorism, accountable to no one, least of all the courts of law where their alleged murderous intercession was in large measure responsible for the death of thousands.

It also raises the perverse and flip side of this issue. That is, if indeed the Princes did what the 9-11 families have alleged they did, acting thereby on behalf of a sovereign state from which and through which they are claiming immunity, than their alleged criminality is no longer just a conspiracy to murder. It becomes, because of its sovereign standing, an act of war!

Perhaps Saudi Arabia is so adept at invoking "Sovereign Immunity" because it has served them so well. They have consistently militated and lobbied our Congress and Administration not to revoke the protection Saudi Arabia and OPEC receives from our courts and laws under the doctrine of "Sovereign Immunity." This, even though they openly conspire with other oil producers to manipulate the price of oil through the OPEC cartel. Similar collusive actions would land American producers of oil, other commodities or manufactured goods behind bars forthwith, in that they would be accused and found guilty of brazen breach of our anti-trust laws. (Please see "U.S. Launches Complaint at WTO Over Chinese Export Curbs While Giving OPEC/Saudi Arabia a Free Pass" 06.25.09)

If the law on "Sovereign Immunity" needs to be changed in order to permit our courts to act responsibly then it is time for Congress and the Administration to take the matter in hand. "Sovereign Immunity" has its roots in old English law postulating that neither the sovereign nor the sovereign state can commit a legal wrong. It is an anachronism of another time, another age. "Sovereign Immunity" is a concept in law that the world, as we know it today, with its failed and corrupted states, can no longer be permitted to continue in its current configuration. This is not a matter to be taken lightly. Our future may well depend on action sooner rather than later, when it may be too late!!