American politics is changing. On Capitol Hill and perhaps soon in the White House a new mood is taking root, an “America first” approach that scorns diplomacy and international co-operation. For the first time in a generation there is cause to wonder about the future of our special relationship with the US. This isn’t just about Donald Trump, who is openly sceptical about vital US alliances. Congress is currently opening the way for the US courts to be used against the British security services.
The Justice Against Sponsors of Terrorism Act (Jasta) that is making its way through Congress is not intended as an attack on MI5 or MI6, services that work so closely with the US intelligence community. The law was written with the intention of allowing US victims of terrorism to bring lawsuits in American courts against the government of Saudi Arabia and other nations whose state bodies could be accused of offering a blind eye – and even a helping hand – to sponsors of terror. The Senate has already passed it, leading the Saudi government to threaten to sell the $750 billion in assets it holds in the US.
Saudi Arabia may be the target of the law, but it could also have serious unintended consequences for Britain.
The act would expose the British government to the possibility of revealing the secrets of intelligence operations in open court, or paying damages over alleged failures to prevent terrorist attacks. Either outcome would put the special relationship under severe strain.
Under the bill, US citizens might sue the British government claiming a negligent lack of effort to tackle Islamic radicalism in earlier decades. Some in the US already accuse Britain of tolerating radical preachers in “Londonistan” during the Nineties, an approach they say spawned terrorism.
Such critics cite cases such as the 2001 failed attack on an aircraft by Richard Reid, the shoe bomber. A petty criminal from Bromley and a Muslim convert, he was radicalised at the Finsbury Park Mosque which was known to the police and MI5 as a base for extremist preachers.
A lawsuit brought under Jasta might force the UK government to reveal intelligence about the plot, why it failed to act and its reasons for doing so. Alternatively, Britain would have to agree a financial settlement. Either way, Britain’s reputation would be severely damaged.
Modern diplomacy is based on an old concept, sovereign immunity, which Britain adopted in 1648. It prevents the courts of any nation being used to harass government officials. The bill before Congress would see the US abandon that principle. Foreign governments, even friendly ones, would be exposed to the US courts and the prospect of judicial extortion to avoid revealing secret intelligence. That can only lead to a cooling of relations and isolate the US.
Dismissing cases brought under the new law would be harder, since the act also undermines the power of US authorities to halt trials. Federal courts would no longer be able to rule on sovereign immunity protections during a trial’s “motion to dismiss” stage. That would allow US lawyers to either force foreign states to disclose sensitive information and extort settlements.
There is a way to prevent the most damaging of cases. The US president can invoke a state secrets privilege to bar certain “discoveries” of sensitive information, even in private litigation. Under the current administration, that may prove adequate protection for an ally such as Britain.
But given his disregard for international co-operation it seems reasonable to wonder whether a President Trump would ever invoke that legal privilege, even on behalf of an allied nation. The decision would be completely at his discretion. Such is the power of the presidency.
The Obama White House and the State Department are strongly opposed to Jasta. They can see the potential for diplomatic damage. They also realise the potential for revenge prosecutions in foreign jurisdictions. The international banking system means that most of the world’s financial transactions are routed through computer servers in the US. If the US allows lawsuits against foreign governments for complicity in terrorism, how long before a foreign court allows a case against the US for negligence over terrorist financing?
The Senate was mistaken to pass this bill and the House of Representatives should reject it. Sadly though, both Mr Trump and Hillary Clinton have said they would sign it. Doing so would weaken the US and damage the special relationship. The world needs US leadership and partnership. Jasta would only leave us all more isolated.
