Bipartisanship has become so rare in Washington that pundits risk forgetting how lousy it can be. In 1964, Democrats and Republicans came together to overwhelmingly pass the Tonkin Gulf Resolution, which authorized Lyndon Johnson to use force in Vietnam. The Defense of Marriage Act, which in 1996 made gay marriage illegal under federal law, enjoyed broad bipartisan support too.
It’s worth remembering this when reading about the “unlikely coalition of liberal and conservative senators” including Bernie Sanders and Ted Cruz (along with former Senator Hillary Clinton)—that supports the Justice Against Sponsors of Terrorism Act. The legislation, which in January passed the Senate Judiciary Committee unanimously, carves out an exception to a 1976 law that immunizes foreign governments from lawsuits in American courts. The exception would allow Americans injured in terrorist attacks on American soil to sue governments that support terrorism. What that really means, given that 15 of the 19 9/11 hijackers were Saudi, and some believe elements of the Saudi government aided the attack, is that victims of September 11 could sue Saudi Arabia.
American terror victims against billionaire Arab princes who won’t let their wives drive. For American politicians, it’s not a hard call. And there are reasons to suspect that at least some in the Saudi regime were complicit in the September 11 attacks. The 9/11 Commission found “no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.” But, as The New York Times has noted, that leaves open the possibility that lower-level officials played a role. Last year, alleged “20th hijacker” Zacarias Moussaoui testified that Saudi officials gave al-Qaeda millions of dollars in the years before the attack. (The Saudi government denied the charges).
But as satisfying as it would be to watch 9/11 victims haul Saudi princes into court, passing the Justice Against Sponsors of Terrorism Act would be a very bad idea. President Obama is right to threaten to veto it. To understand why, it’s worth invoking Max Weber’s famous distinction between an “ethic of responsibility” and an “ethic of ultimate ends.”
According to the “ethic of ultimate ends,” actions are ethical if their goal is ethical. The goal of the Justice Against Sponsors of Terrorism Act is justice for people harmed by terrorism. Seems straightforward.
But the “ethic of responsibility” makes it less straightforward because it requires someone supporting an action “to give an account of the foreseeable results of one’s action.” The motive may be pure. (Though, as Reinhold Niebuhr often noted, individuals and nations often hide their true motives even from themselves.) But even when motives are pure, the results can be far murkier.
Consider the “foreseeable results” of allowing terror victims to sue Riyadh. The Saudi foreign minister has warned that if U.S. judges can freeze Saudi Arabia’s American assets to pay terror victims, the Saudis will sell the $750 billion worth of Treasury bills and other American assets they currently hold. Many American observers consider that a bluff: The economic fallout would be even more costly for Saudi Arabia than for the U.S. But the Saudis have done rash things recently. Last year, they launched a brutal and poorly conceived war in Yemen. In January, despite American objections, they executed a dissident Shia cleric, which sparked Iranian demonstrators to torch the Saudi embassy in Tehran. Last month, they abruptly cut billions of dollars in aid to Lebanon. Since assuming the throne a year ago, notes The Washington Post editorial page, Saudi King Salman’s behavior has been “reckless.”
So when contemplating a law whose signing the Saudis have said they would respond to with economically devastating retaliation, what level of risk is acceptable? It’s not a question to which Hillary Clinton, Bernie Sanders, or Ted Cruz has a good answer.
And even if the Saudis don’t respond by selling U.S. treasuries, they have other ways to harm the United States. Riyadh has been largely paying for America’s efforts to train “moderate” Syrian rebels. The Saudis could curtail that support and instead funnel money to al-Qaeda-type groups like the Al-Nusra Front, which the Obama administration has been lobbying them to halt. Without Saudi support, the United States has little hope of brokering a political deal that begins to end Syria’s catastrophic civil war. Nor is there much hope of ending the civil war that has devastated Yemen. And were the Saudis to withdraw the offer to recognize Israel they extended in 2002, and instead publicly throw their support behind a one-state solution, the consequences for both Israel and the United States would be grim.
These potential consequences say nothing about the merit of holding Riyadh to account for 9/11. It would be wonderful if the United States could hold Beijing to account for its crimes in Tibet too. But before the United States tries to hold other countries to account—especially countries to which it owes large sums of money—it’s worth pondering carefully how those countries may respond.
In foreign policy, wrote the renowned international-relations scholar Hans Morgenthau, the best a country can usually do is to choose “among several possible actions the one that is the least evil.” If the politicians backing the Justice Against Sponsors of Terrorism Act can defend it on those grounds—if they can defend it while acknowledging the costs it may bring—then they deserve a serious hearing. So far, Clinton, Sanders, and Cruz haven’t even tried.